THESE TERMS AND CONDITIONS (THIS "AGREEMENT") ARE A LEGAL AGREEMENT BETWEEN YOU AND TRUSTED.COM, LLC ("TRUSTED" OR "WE"), THE OWNER AND OPERATOR OF WWW.TRUSTED.COM AND ALL SITE-RELATED SERVICES, INCLUDING ANY CONTENT AND CODE RELATED THERETO (COLLECTIVELY, THE "SITE"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS AND SERVICES OFFERED OR SOLD ON THE SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THIS SITE. BY ACCESSING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, AS THEY MAY BE MODIFIED OR AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS THE SITE.
This Agreement is made between Trusted and you, the Site visitor, customer and/or registered User ("you"). Even after your use of the Site is terminated, this Agreement will remain in effect.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION PROVISION IN PARAGRAPH 18 THAT AFFECTS YOUR RIGHTS TO SUE UNDER THIS AGREEMENT.
1. THE SERVICES AND CHANGES TO TERMS
(a) Trusted.com will provide You with authentication validation services (“eTitle Services”) for certain luxury products on a software-as-a-service basis through the Site and our online proprietary software solution. Trusted.com may update the Services from time to time in its sole discretion and in accordance with this Agreement.
(b) We reserve the right at any time and without notice, to:
· Add to, change or remove any part, term or condition of this Agreement;
· Change the Site, including eliminating, modifying or discontinuing any content on or feature of the Site, restricting the hours of its availability or limiting the amount of use permitted; or
· Change any fees or charges for use of the Site, including instituting new or increased fees or charges for the use of the Site or any other Site-related services or any feature thereof.
We will notify you of changes to this Agreement by changing the "Last Updated" date above, and by providing notice by any means, including posting a notice that this Agreement has changed on the Site, or sending an email to your last email address of record if you have provided your email address to us. Any changes we make will be effective immediately upon notice. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Site after such notice constitutes your acceptance of such changes.
2. REGISTRATION INFORMATION AND PRIVACY
You hereby agree to provide and maintain true, accurate, current, and complete information about yourself or your company, where applicable, as prompted by our registration processes or as required for the use of any services at the Site. You hereby acknowledge that, if you provide any information that does not satisfy this provision, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site.
You also agree that Trusted may store and use any personal information that you provide to us for use in processing your order, billing fees to your credit card, and as otherwise permitted under applicable law. Please refer to our Privacy Policy (the “Privacy Policy”), which is incorporated by reference into this Agreement, for more information regarding Trusted's collection, use, disclosure and storage of your personal information. You hereby agree that we may use your personal information in accordance with the terms of the Privacy Policy.
3. YOUR ACCOUNT
3.1. Account Security. You are entirely responsible for all activities that occur under your account(s) and for maintaining the confidentiality of your username(s), password(s), and your account(s). You also hereby agree to promptly notify us via email addressed to security@trusted.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Site. In addition, you agree to take adequate measures to safeguard your information and account, including exiting from your account at the end of each session.
3.2. Account Information. You understand and hereby acknowledge that you have no ownership rights in your trusted Account, and that if you cancel your trusted Account (or your Account is terminated by trusted in accordance with this Agreement), all your account information including any User-Generated Content (defined below), may be deleted and removed from any public area of the Site. Information may continue to be stored on Trusted's web servers or retained by third parties as cached copies for the convenience of those entities but will not be accessible to you after termination of your trusted Account.
4. PAYMENT AND SERVICE TERMS
4.1. Description of Services. For the purposes of this Agreement:
"Services" collectively refers to all authentication, validations and tracking services offered by Trusted through the Site. The term excludes any service offered by Trusted to its business or corporate clients that does not originate through the Site.
"User" or "Users" refers to any user(s) of the Site or Services, including any registered account holder or Site visitor.
Trusted Users can register for an account and use our Services that are offered through the Site. In general, Trusted's Site and/or Services may be used to verify the authenticity of a product before purchase, to acquire or transfer an eTitle for an authentic product, or to purchase authentic items through Trusted Authorized Retailers. Certain Trusted Services are available at no cost to Users; while others are available for a fee. For more information on the pricing of Services, see Subsection 4.4 below.
4.2. Account Registration. There are two types of user accounts at our Site: (1) corporate accounts, for our partners and business customers, and (2) individual accounts, for individual consumers or purchasers.
4.2.1. If you are a business and would like to establish an account with Trusted, please contact us at account_support@trusted.com.
4.2.2. Individual Users. Individual Users can register for an account at our Site. To register for an account, a User must create a username, password and provide us with the following information: name, mailing address, phone number and email address. We may also collect additional contact information, such as fax number, or allow you to store your credit card or payment information to your account for future purchases. After registering, Users receive an e-mail verifying their account and e-mail address; in order to start using an account, a User must confirm that he or she has received the verification email.
4.3. Payment Methods
4.3.1. Trusted. Trusted accepts credit card and certain third-party payment processor services (including PayPal). If you purchase any of the Services for which a payment is charged, we will collect your credit card number and billing information. You may ask us to remember and store your credit card information for future purchases. However, will only use your credit card information to process or facilitate your payment for your order(s). You represent and warrant that you have complied with all requirements of any third-party payment processor services you may choose to use, and that we have the right to request and receive payment from such third-party payment processors regarding Your purchase of eTitle Services.
4.3.2. Authorized Retailers. Trusted Users can use the Site to purchase authentic items from Trusted Authorized Retailers. In such cases, any payments are made directly to the Authorized Retailer, not to Trusted. If you purchase an item from an Authorized Retailer, the Authorized Retailer may collect and process your credit card information in accordance with its billing practices; please note that Trusted merely facilitates your order from an Authorized Retailer; once you enter your payment information and purchase a product, you are dealing directly with the Authorized Retailer and your payment information, transaction and related activities, are subject to the policies of the Authorized Retailer, including any applicable privacy policy, terms of purchase, return policy, and the like. If you have any questions about an order you have placed with an Authorized Retailer, you should contact the Authorized Retailer directly.
You understand that all Trusted Authorized Retailers maintain their own payment processor; the Authorized Retailer, not Trusted, is processing your payment information for that product. The Trusted Site merely facilitates the purchase between the User and the Authorized Retailer; we do not process any payments made to, or fulfill any orders placed with, those Authorized Retailers. All payment or credit card information is transmitted to the Authorized Retailer or its payment processor for processing. Trusted does not process any User payments on behalf of any Authorized Retailer.
4.4. Refund Policy
4.4.1. Trusted Services. You may cancel your Trusted order at any time before we charge your credit card by cancelling any online order in progress. However, once we charge your credit card for the purchase of a Service all sales are final and the purchase price paid is not refundable.
4.4.2. Authorized Retailers. Trusted is not responsible for any purchases or payments between Users and Authorized Retailers; we have no control over any of our Authorized Retailer's refund process or policy. For information about such process or policy, you must consult the Authorized Retailer. Trusted is not responsible for any damaged, incorrect, non-delivered or otherwise deficient products or items sold by Trusted Authorized Retailers. Any complaints, questions or disputes relating to your purchase from an Authorized Retailer should be referred to the Authorized Retailer.
4.5. Pricing. The price that we will charge you for the Services is the price on the Site on the date you submit your order. Trusted reserves the right to change prices for the Services at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
5. PROPER USE OF THE SITE
The term "Site Information" means all information, text, pictures, sound, graphics, video, data and other content provided by Trusted, its licensors, and other third parties that is displayed on the Site, except for any User-Generated Content (defined in "User-Generated Content" section below).
You hereby expressly acknowledge that Trusted or it Licensors own all legal right, title and interest in the Site Information, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like and any and all other proprietary rights contained therein, including, without limitation, the trademarks, service marks, logos, patent rights, and copy rights. Trusted reserves all rights not expressly granted in and to the Site and the Site Information.
You are authorized to access and use the Site and Site Information as set forth in this Agreement, provided that: (i) your use of the Site and Site Information as permitted hereunder is solely for your personal, non-commercial use; (ii) you will not copy, distribute or transfer any portion of the Site on any media without Trusted's prior written approval; (iii) you will not alter, adapt or otherwise modify any part of the Site other than as may be reasonably necessary to use that part of the Site for its intended purpose; and (iv) you will otherwise comply in full with the terms and conditions of this Agreement and applicable law.
6. USER-GENERATED CONTENT
The Site may, now or in the future, permit Users to submit content, such as comments and product reviews and may also provide for the hosting, sharing or publishing of such content ("User-Generated Content"). Any User-Generated Content you submit may be publicly available to other Site Users as well as members of the general public. You agree and acknowledge that, without regard to whether such content is published, Trusted cannot and does not guarantee any confidentiality or security of any User-Generated Content. You further understand and agree that Trusted does not warrant or verify the accuracy of any User-Generated Content. Your decision to submit, accept or rely on any User-Generated Content is at your own risk.
You also agree that any material, information or idea submitted or posted on this Site by you will be considered non-confidential and non-proprietary. Trusted may share or otherwise use your submission for any purpose whatsoever without your consent.
You shall also be solely responsible for any User-Generated Content you submit and the consequences of posting or publishing such. With respect to any User-Generated Content you submit, you agree you will not: (i) submit any content that is copyrighted, protected by trade secret or otherwise subject to any third party intellectual property rights or proprietary rights, including any privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner of such rights to post such content and to grant Trusted all of the license rights and other rights granted herein; (ii) upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) use the Site to harm minors in any way; (iv) impersonate any person or entity, including but not limited to, a representative of Trusted, or falsely state or otherwise misrepresent your affiliation with a person or entity; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted to or through the Site; (vi) upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of solicitation; (vii) upload, post, e-mail or otherwise transmit any content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or NASDAQ, and any regulations having the force of law; and (ix) collect or store personal data about other Users.
While we are not obligated to do so, we reserve the right to refuse or remove any User-Generated Content from the Site that we reasonably consider to violate this Agreement or to otherwise be illegal or objectionable. Further, if we deem appropriate in our sole discretion, we reserve the right to preserve a record of any User-Generated Content that we reasonably believe may to be illegally posted or to otherwise violate the law or the rights of a third party, and to turn all or a portion thereof over to law enforcement officials.
You hereby acknowledge and agree that Trusted has the right, but not the obligation, to monitor the Site, the Site Information and any User-Generated Content that you or any third party transmit or post, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly, to protect itself, its sponsors, its registered Users and visitors, and to comply with legal obligations or governmental requests. Trusted also reserves the right to, without advance notice, suspend, block or deny any User access to the Site or Site Information when in Trusted's sole discretion we believe the User has violated any of the terms of this Agreement.
7. CODE OF CONDUCT; IMPROPER USE OF SITE
Trusted respects the intellectual property of others, and we ask you and all Users to do the same. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of Users of the Site who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Trusted or others.
Further, while using the Site or Site-related services (including in connection with any User-Generated Content), you will not, and will not induce any third party to: (i) use the Site or any of the Site Information in a way that is unlawful, harms Trusted or any User of Site, or otherwise violates the rights of any party; (ii) use the Site or any of the Site Information in a way that could overburden, or impair the Site or the networks or systems connected to the Site; (iii) attempt to disable or circumvent any security mechanisms used by the Site or Site Information, or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Site Information or any other systems or networks connected to the Site, or to any server of Trusted or its third party service providers, by hacking, password "mining", or any other illegal means; (iv) use any "deep-link", "page-scrape", "robot", "spider", or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Site Information; (v) use any device, software, instrumentality or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site, or with any other person's use of the Site; (vi) breach any security measures implemented on the Site or in the Site Information; (vii) track or seek to trace any information on any other person who visits the Site; (viii) use the Site or Site Information for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (ix) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to, the Site or Site Information, or otherwise made available to you in connection with the Site or Site Information; or (x) use the Site or Site Information in any manner that otherwise violates this Agreement.
8. DMCA NOTICE
If you are a copyright owner or an agent thereof and believe any Site Information or User-Generated Content infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act ("DMCA") by providing notice to our Designated Copyright Agent ("Designated Copyright Agent") containing the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(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 us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Trusted's Designated Copyright Agent to receive notifications of claimed infringement is:
Attn: Designated Copyright Agent
Debbie Rosenbaum
c/o DLA Piper LLP
500 8th Street, NW
Washington, DC 20004
202-799-4145 T
202-799-5145 F
debbie.rosenbaum@dlapiper.com
Please send only DMCA notices to our Designated Copyright Agent. You acknowledge that if you fail to comply with all of the above requirements of this Section 8, your DMCA notice may not be valid.
9. INDEMNIFICATION
You hereby agree to indemnify, defend, and hold the Trusted Parties (defined in "Disclaimer of Warranties" section below) harmless from and against any and all losses, damages, claims, demands, liabilities and costs (including, without limitation, settlement costs, attorneys' fees and any legal or other fees and expenses incurred in investigating or defending any actions or threatened actions) arising from or related to your breach of this Agreement or otherwise arising from or related to your use or misuse of the Site, or Site Information, or your submission of any User-Generated Content.
10. SECURITY
You shall not violate or attempt to violate the security of the Site. Violations of system or network security may result in civil or criminal liability. Trusted reserves the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who have participated in such violations.
11. COMMUNICATIONS
With respect to all communications you make to Trusted, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and Trusted shall have no obligation to protect your communications from disclosure; (ii) Trusted shall be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) Trusted shall be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
12. DISCLAIMERS
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. ALL SITE INFORMATION AND USER-GENERATED CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, OF ANY KIND. YOUR USE OF THE SITE, INCLUDING ANY CONTENT OR SERVICES THEREIN, IS ENTIRELY AT YOUR OWN DISCRETION AND RISK, AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE.
TRUSTED, ON BEHALF OF ITSELF AND ITS PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, DISTRIBUTORS, AGENTS, REPRESENTATIVES, AND THIRD-PARTY SERVICES PROVIDERS, INCLUDING ANY RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND SUPPLIERS THEREOF, AND ANY OF THE FOREGOING ENTITIES' RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, PARTNERS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "TRUSTED PARTIES"): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR NONMISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION CONTENT, OR SYSTEM INTEGRATION. TRUSTED DOES NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, OR ANY CONTENTS OR SERVICES THEREIN, WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, TIMELY, ERROR-FREE OR COMPLETELY SECURE MANNER, OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENTS THEREOF WILL MEET YOUR REQUIREMENTS, OR THAT THE; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, OR ANY CONTENT OR SERVICES THEREIN, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
Some jurisdictions may not allow the exclusion or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, Trusted's warranties and conditions with respect to the Site and Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree and understand that while Trusted eTitle Services permit the issuance of eTitles for certain luxury products, we do not guarantee that products given to customers match the eTitle issued, as you (either as a consumer, as a buyer or as a seller) are solely responsible to ensure that the serial number of the product matches the serial number on the eTitle. Further, we do not guarantee that products provided to any customer or consumer at time of sale by any provider are authentic, unadulterated or not counterfeited. You agree and understand that eTitles are issued upon reliance of the information given by the seller, the consumer or the buyer, and thus Trusted.com is not responsible for any and all errors associated with improperly issued eTitles due to inaccurate information, errors made at time of sale for lack of verification, or negligence of any retailers, providers, sellers or buyers when confirming the authenticity of the products. You receive eTitles at your own risk.
13. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL THE TRUSTED PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE, EVEN IF A TRUSTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A TRUSTED PARTY IS FOUND TO BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE, OR ANY CONTENT OR SERVICES THEREIN, THE RELEVANT TRUSTED PARTY'S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID TRUSTED FOR YOUR USE OF THE SITE, AND ANY CONTENT OR SERVICES THEREIN; AND (B) THE SUM OF TEN ($10.00) US DOLLARS.
Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, Trusted's liability for such damages with respect to the Site and Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.
14. LIMITED TIME TO BRING YOUR CLAIM
Where permitted by law, you and Trusted agree that any cause of action arising out of or related to the Site or any Site Information must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
15. LINKS
The Site may provide, or third parties may provide, links to other websites or resources. Because Trusted has no control over such websites or resources, you acknowledge and agree that Trusted is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Trusted assumes no responsibility for the content, privacy policies or practices by such third-party websites. By using this Site, you expressly waive any rights, claims or liability against Trusted from your use of any third-party website, including third-party payment processors.
16. TERMINATION
You agree that Trusted, in its sole discretion, may terminate your use of the Site and remove and discard your User-Generated Content, for any reason, if Trusted believes that you have or may have violated or acted inconsistently with the letter and spirit of this Agreement. Trusted may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Trusted may bar any further access to the Site. Further, you agree that Trusted shall not be liable to you or any third-party for any termination of access to the Site.
17. RIGHT TO ACCESS / AGE OF USERS
You affirm that you are over the age of 13. If you are under 13 years of age, you may not access or use the Site.
In order to post or submit any User-Generated Content to the Site you must be 18 years of age. By contributing such content you are affirming that you are 18 years old or more and are fully able and competent to enter into and comply with the terms and conditions of this Agreement.
18. BINDING ARBITRATION
18.1. Purpose. If you have a Dispute (as defined below) with Trusted that cannot be resolved through an informal dispute resolution with Trusted, you or Trusted elect to arbitrate that Dispute in accordance with the terms of this Dispute Resolution provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
18.2. Definitions. The term "Dispute" means any dispute, claim, or controversy between you and Trusted regarding any aspect of your relationship with Trusted, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Dispute Resolution provision (with the exception of the enforceability of the class action waiver clause provided in this paragraph). "Dispute" is to be given the broadest possible meaning that will be enforced. As used in this Dispute Resolution provision, "Trusted" means Trusted and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
18.3. Right to Opt Out of Arbitration. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY TRUSTED IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT BY SENDING NOTICE TO: Trusted, ATTN: Legal Department,11950 Democracy Drive, Suite 300, Reston, Virginia 20190. YOUR WRITTEN NOTIFICATION TO TRUSTED MUST INCLUDE YOUR NAME AND ADDRESS AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH TRUSTED THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH TRUSTED OR THE DELIVERY OF SERVICES TO YOU BY TRUSTED. IF YOU HAVE PREVIOUSLY NOTIFIED TRUSTED OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Trusted elect to resolve your Dispute through arbitration pursuant to this Dispute Resolution provision, the party initiating the arbitration proceeding may initiate the arbitration proceeding with American Arbitration Association ("AAA"), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879, www.adr.org under the Commercial Arbitration Rules of the AAA.
18.4. Arbitration Procedures. Because the Service(s) provided to you by Trusted concerns interstate commerce, the Federal Arbitration Act ("FAA"), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from Trusted may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration shall not be applicable under this Dispute Resolution provision.
If there is a conflict between this Dispute Resolution provision and the rules of the arbitration organization chosen, this Dispute Resolution provision shall govern. If the arbitration organization that you select will not enforce this Dispute Resolution provision as written, it cannot serve as the arbitration organization to resolve your dispute with Trusted. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Dispute Resolution provision as written. If there is a conflict between this Dispute Resolution provision and the rest of this Agreement, this Dispute Resolution provision shall govern.
A single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
18.5. Restrictions: YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH TRUSTED UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
18.6. Location of Arbitration. The arbitration will take place in Fairfax County, Virginia.
18.7. Payment of Arbitration Fees and Costs. TRUSTED WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR'S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN TRUSTED'S FAVOR, YOU SHALL REIMBURSE TRUSTED FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE TRUSTED FOR ANY OF THE FEES AND COSTS ADVANCED BY TRUSTED. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, TRUSTED WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
18.8. Severability. If any clause within this Dispute Resolution provision (other than the class action waiver clause identified above) is found to be illegal or unenforceable, that clause will be severed from this Dispute Resolution provision, and the remainder of this Dispute Resolution provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Dispute Resolution provision will be unenforceable, and the dispute will be decided by a court. In the event this entire Dispute Resolution provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Dispute Resolution provision, you and Trusted have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
18.9. Exclusions from Arbitration. YOU AND TRUSTED AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY TRUSTED THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER CUSTOMER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY'S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF A SERVICE. Either party may bring a lawsuit for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement, without first engaging in arbitration or the informal dispute-resolution process described above
18.10. No Class Actions. You agree that you may only resolve disputes with Trusted on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under these Terms of Service.
18.11. Continuation. This Dispute Resolution provision shall survive the termination of your customer relationship with Trusted.
18.12. SPECIAL NOTE REGARDING ARBITRATION FOR CALIFORNIA AND/OR WASHINGTON STATE CUSTOMERS: IF YOU ARE A TRUSTED CUSTOMER IN CALIFORNIA AND/OR WASHINGTON STATE, TRUSTED WILL NOT SEEK TO ENFORCE THE ARBITRATION PROVISION ABOVE UNLESS WE HAVE NOTIFIED YOU OTHERWISE.
19. JURISDICTION, VENUE & WAIVER OF JURY TRIAL
This Agreement and all claims or issues regarding the Site shall be governed according to the laws of the Commonwealth of Virginia, to the exclusion of its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall be excluded.
Except in those cases where contractual attribution of jurisdiction is not enforceable on the User as a consumer, any disputes that may arise concerning the formation, interpretation or performance of this Agreement which are not amicably resolved or resolved by arbitration, shall be brought in state or federal court in Fairfax County, Virginia and you consent to the jurisdiction of such courts.
TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THIS AGREEMENT WHICH ARE NOT RESOLVED BY ARBITRATION.
20. ENTIRE AGREEMENT, NOTICE, WAIVER, AND SEVERABILITY.
This Agreement constitutes the entire Agreement between you and Trusted in connection with the Site or Services and supersedes all prior agreements between you and Trusted regarding the subject matter contained herein. If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible, and the other provisions contained herein will remain in full force and effect. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Nothing in this Agreement shall be construed as creating or constituting a partnership, joint venture, agency or other like relationship between you and Trusted or any of the Trusted Parties.
The failure of Trusted to insist upon performance of any of the terms and conditions of this Agreement, or the waiver of any breach of, or the decision to not exercise any of its rights under, any of the terms or conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, or any other terms and conditions of this Agreement. Any waiver must in writing and signed by Trusted.