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Terms of Use

TERMS OF USE OF BENSHERMAN.COM

Effective Date: August 21, 2024

IMPORTANT NOTICE: THESE TERMS contain a binding arbitration provision and class action waiver that apply to all claims brought against US. THEY affect your legal rights as detailed in the DISPUTE RESOLUTION, binding ARBITRATION, AND CLASS ACTION WAIVER section below. By USING THE SITE, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPT THESE TERMS AND agree to be bound by thEM, INCLUDING THE DISPUTE RESOLUTION and binding ARBITRATION AND CLASS ACTION WAIVER sections. PLEASE READ IT CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SITE.

This site (together with the services offered through the Site, the "Site") is operated by Marquee Brands, liability company, d/b/a BENSHERMAN.COM, and its affiliates (collectively, "BENSHERMAN.COM" or "we" or "us"). By accessing or using this Site (or any part thereof), you agree to be legally bound by the terms and conditions that follow (the "Terms of Use") as we may modify them from time to time. These Terms of Use apply to your use of this Site, including the BENSHERMAN.COM services offered via the Site. They constitute a legal contract between you and BENSHERMAN.COM, and by accessing or using any part of the Site you represent and warrant that you have the right, power and authority to agree to and be bound by these Terms of Use. If you do not agree to the Terms of Use, or if you do not have the right, power, and authority to agree to and be bound by these Terms of Use, you may not use the Site. Notwithstanding anything to the contrary herein, if you and BENSHERMAN.COM have entered into a separate written agreement that covers your use of a BENSHERMAN.COM service, the terms and conditions of such agreement shall control with respect to such service to the extent they are inconsistent with these Terms of Use. BY ACCEPTING THE TERMS OF USE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU HAD SIGNED THIS AGREEMENT.

REGISTRATION

In order to access some features of the Site, you may be required to register to select a password and username, which shall consist of an e-mail address you provide and a screen name ("User ID"). To register, use the registration form available by clicking the "register" link near the top of any page on the Site. If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. Registration is necessary if you wish to post content to or participate in the Site other than simply by reading product information and content and reviews posted by others. For example, you may not (i) enter, select or use a false name or an e-mail address owned or controlled by another person with the intent to impersonate that person, or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization. Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms of Use, which may result in immediate termination of your account. In addition, we reserve the right to refuse registration of, or cancel a User ID in our discretion. If you provide us with any information about yourself, that information is subject to our Privacy Policy, which is incorporated into and made part of these Terms of Use.

CONTENT

The information, data, text, software, photographs, images, graphics, organization, layout, design, and other content contained on or provided through this Site (collectively, the "Content") are proprietary to BENSHERMAN.COM and its licensors, and are protected by copyright and other U.S. and international intellectual property rights, laws and treaties. The Content includes proprietary databases (the "Database") of service providers' information, which, by way of example, include information, text, photographic and other images and data contained therein (collectively, the "Information") and the proprietary organization and structures for categorizing, sorting and displaying such Information, and the related software ("Software"). The Site, Content, Database, Information, Software and any portion of the foregoing, including any derivatives, successors, updates or modifications provided thereto and any information derived from the use of the Database, including as a result of the verification of any portion of the Information, are collectively referred to herein as the "Product". Subject to your compliance with these Terms of Use, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use the Site and the Product solely for your use consistent with these Terms of Use. The Product is the sole and exclusive property of us and our licensors, and nothing in these Terms of Use grants you any ownership rights in the Product or any license or rights to use the Product other than as expressly set forth in these Terms of Use.

PROHIBITED USES

The Product is for personal and commercial use. You shall not: (a) distribute, disclose, copy, reproduce, display, publish, transmit, assign, sublicense, transfer, provide access to, use or sell, directly or indirectly (including in electronic form) any portion of the Product, or (b) modify or create derivative works of any portion of the Product. Notwithstanding anything to the contrary herein, you shall not: 1. Copy or distribute any part of the Product in any medium without BENSHERMAN.COM ‘s prior written authorization; 2. Use or distribute any Information from the Product, including Information that has been verified or confirmed by you or anyone else, to directly or indirectly create or contribute to the development of any database or product; 3. Modify, merge, decompile, disassemble, translate, decode or reverse engineer any portion of the Product, or use any data mining, gathering or extraction tool, or any robot, spider of other automatic device or manual process, to monitor or copy any portion of the Product; 4. Use, reproduce, publish or compile any portion of the Product for the purpose of selling or licensing any portion of the Product or making any portion of the Product publicly available; 5. Store, copy or export any portion of the Product into any database or other software; 6. Take any action (including submitting recommendations) that would undermine the review and rating process under the Product; 7. Upload, post, e-mail or otherwise transmit any information, data, text, software, photographs, images, graphics, or other content to or through the Product, or use any portion of this Product in a manner, that: a. is unlawful, threatening, abusive, harmful, libelous, tortious, defamatory, false, misleading, obscene, vulgar, racially or ethnically offensive or otherwise objectionable; b. infringes any patent, copyright, trademark, trade secret, or other proprietary right of any party or violates the privacy or publicity rights of any party; c. constitutes unlawful advertising or fraudulent, unfair or deceptive practices, "spam", or any other form of unlawful solicitation, including any non-solicitation law, which, with limited exceptions, prohibits anyone from knowingly selling, giving or receiving, for the purpose of selling or offering for sale any property or service to persons listed therein, any list of names and addresses contained in or derived from public records; d. contains software viruses or any other computer code, files or programs that are designed to or have the capability to interrupt, modify, damage, improperly access, disable, destroy or limit the functionality of the Product or servers or networks connected thereto or the activities of other users of the Product or of any computer software or hardware or telecommunications equipment; or e. you do not have a right to transmit under any law, contractual obligation (i.e., nondisclosure agreement) or fiduciary duty; 8. Impersonate any person or entity, or falsely state or otherwise misrepresent any registration information, or otherwise disguise the origin of any information, data, text, software, photographs, images, graphics, or other content posted on or transmitted through the Product; and 9. Use any portion of the Product to encourage or engage in illegal activity, stalk or harass another person, or violate these Terms of Use or any applicable local, state, national or international law, rule, regulation or ordinance, including without limitation, state and local real estate practice, spam or privacy laws.

TERMINATION

You acknowledge and agree that BENSHERMAN.COM may interrupt or terminate or block your access to the Product or portions thereof at any time and for any reason, with or without notice to you, in our sole discretion. In the event that occurs, you shall cease using any portion of the Product, permanently delete or destroy all portions of the Product within your possession, custody or control, and, upon written request from BENSHERMAN.COM, certify, in writing, your compliance with this provision.

SUBMITTED CONTENT

This Product may include opportunities for users to submit information, data, text, photographs, images, graphics, and other content to the Product, for it to be publicly displayed on the Product, used by BENSHERMAN.COM in connection with placing consumers to service providers, or for some other purpose ("Submitted Content"). BENSHERMAN.COM acknowledges that if you provide BENSHERMAN.COM with any information or images, then you retain any applicable ownership rights that you may have with respect to such information and images. You understand that all such Submitted Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated. This means that you, and not BENSHERMAN.COM, are entirely responsible for all such content that you upload, post, e-mail or otherwise transmit to or via the Product. BENSHERMAN.COM is under no obligation to post or use any such Submitted Content you may provide and may remove any such content at any time in BENSHERMAN.COM's sole discretion.

With respect to all Submitted Content you elect to upload, post, e-mail or otherwise transmit to or via the Product, you grant BENSHERMAN.COM and its affiliates and their licensees a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license (through multiple tiers) to use, reproduce, adapt, perform, display, publish, translate, prepare derivative works from, modify, distribute, sell, and take any other action with respect to such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You further acknowledge and agree that BENSHERMAN.COM may preserve any such content and may also disclose such content in its discretion.

You represent and warrant that (a) you own or have the full right, power and authority to grant to BENSHERMAN.COM use of and rights in and to all Submitted Content that you upload, post, e-mail or otherwise transmit to or via the Product; (b) your license of such content to BENSHERMAN.COM hereunder does not, and the use or license of such content by BENSHERMAN.COM to third parties will not, infringe any right or interest owned or possessed by any third party; and (c) there are no claims, judgments or settlements to be paid by you, or pending claims or litigation, relating to such content.

BENSHERMAN.COM does not endorse and is not responsible or liable for any Content, data, advertising, products, goods or services available or unavailable from, or through, any service providers. You agree that should you use or rely on such Content, data, advertisement, products, goods or services, available or unavailable from, or through any service provider, BENSHERMAN.COM is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any service provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such service provider exclusively and do not involve BENSHERMAN.COM. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging service providers.

You agree that BENSHERMAN.COM is not responsible for the accessibility or unavailability of any service provider or for your interactions and dealings with them, waive the right to bring or assert any claim against BENSHERMAN.COM relating to any interactions or dealings with any service provider, and release BENSHERMAN.COM from any and all liability for or relating to any interactions or dealings with service providers.

The Content available through the Product may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of BENSHERMAN.COM, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Your interactions with organizations and/or individuals found on or through the Product, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.

You agree that BENSHERMAN.COM shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that BENSHERMAN.COM is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release BENSHERMAN.COM, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and / or our service.

LINKS; FRAMING

Linking to any page of the Site other than to http://www.BENSHERMAN.COM through a plain text link is strictly prohibited in the absence of a separate linking agreement with BENSHERMAN.COM. Any web site or other device that links to http://www.BENSHERMAN.COM or any page available therein is prohibited from (a) replicating the Product, (b) using a browser or border environment around the Product, (c) implying in any fashion that BENSHERMAN.COM or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with BENSHERMAN.COM or any of its affiliates, (e) presenting false information about BENSHERMAN.COM products or services, and (f) using any logo or mark of BENSHERMAN.COM or any of its affiliates without express written permission from BENSHERMAN.COM. Except as set forth in the preceding sentence, or as otherwise authorized by BENSHERMAN.COM in writing, links to and the framing of the Product is prohibited. The Product may include links to other sites, some of them operated by BENSHERMAN.COM and some of them operated by third parties. Under no circumstances shall BENSHERMAN.COM be deemed to be associated or affiliated with, or viewed as endorsing or sponsoring, any web site that links to this Site, or is linked to from this Site, or any services that may be offered through such web sites. BENSHERMAN.COM has not necessarily reviewed any or all of the content of such other web sites, and we disclaim responsibility for the content and services available therein. Different terms and conditions may apply to your use of any linked sites. It is your responsibility to review any such terms and conditions in connection with your use of any such sites. Any issues or disputes that may arise with respect to any such sites shall solely be between you and the applicable third party.

INFORMATION REGARDING ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION IN THE PRODUCT

The Product is provided for general information only and should not be relied upon or used as the basis for making significant decisions without consulting primary or more accurate, more complete or timelier sources of information. Any reliance upon the Product shall be at your own risk. Neither we, nor any third party involved in creating, producing or delivering the Product, is responsible if the Product is not accurate, complete or current. Neither we, nor any third party involved in creating, producing or delivering the Product, has any responsibility for any consequence relating directly or indirectly to any action or inaction that you take based on the Product.

NO WARRANTIES

ALTHOUGH BENSHERMAN.COM MAKES EFFORTS TO PROVIDE AN ACCURATE PRODUCT, THE PRODUCT AND ALL PARTS THEREOF ARE PROVIDED "AS IS", "WITH ALL FAULTS", AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY LAW, BENSHERMAN.COM AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, MEMBERS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE "BENSHERMAN.COM PARTIES") DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE LICENSED PRODUCT, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (4) THE PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY BENSHERMAN.COM PARTY, AND (5) THAT ACCESS TO OR USE OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE PRODUCT IS AT YOUR OWN RISK AND THE BENSHERMAN.COM PARTIES MAKE NO WARRANTIES. BENSHERMAN.COM RESERVES THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE PRODUCT OR ANY FEATURE OR PART THEROF AT ANY TIME. IF YOU DOWNLOAD ANY CONTENT FROM THIS PRODUCT, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT. THESE DISCLAIMERS ARE INDEPENDENT OF ANY OTHER TERM IN THESE TERMS OF USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU OR A THIRD PARTY.

Limitation of Liability

YOU ACKNOWLEDGE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BENSHERMAN.COM PARTIES WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO ANY PERSONAL INJURIES ARISING FROM SERVICE PROVIDERS, ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE PRODUCT, OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE PRODUCT. IN ADDITION, IF YOU HAVE NOT PAID ANY FEES TO BENSHERMAN.COM TO ACCESS THE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NONE OF THE BENSHERMAN.COM PARTIES SHALL BE LIABLE FOR ANY DIRECT DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THE PRODUCT, THESE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING. THESE LIMITATIONS OF LIABILITY INCLUDE DAMAGES FOR ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, YOUR LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF YOUR TRANSMISSIONS AND DATA, AND OTHER TANGIBLE AND INTANGIBLE LOSSES.

UNDER NO CIRCUMSTANCES WILL ANY OF THE BENSHERMAN.COM PARTIES BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES, LOST PROFITS, ARISING OUT OF, BASED ON, OR RESULTING FROM, OR IN CONNECTION WITH THE PRODUCT, THESE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF BENSHERMAN.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF DAMAGES IS INDEPENDENT OF THE EXCLUSIVE REMEDY DESCRIBED ABOVE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS.

NONE OF THE BENSHERMAN.COM PARTIES SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER OR FROM ANY DELAY IN THE PERFORMANCE THEREOF DUE TO CAUSES BEYOND BENSHERMAN.COM'S CONTROL, INCLUDING, WITHOUT LIMITATION, INDUSTRIAL DISPUTES, ACTS OF GOD OR GOVERNMENT, PUBLIC ENEMY, WAR, FIRE, OTHER CASUALTY, FAILURE OF ANY LINK OR CONNECTION WHETHER BY COMPUTER OR OTHERWISE, OR FAILURE OF TECHNOLOGY OR TELECOMMUNICATIONS OR OTHER METHOD OR MEDIUM OF STORING OR TRANSMITTING THE PRODUCT.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

ALL OF THESE LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, TORT OR OTHERWISE, AND EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION ARISING OUT OF OR PERTAINING TO THESE TERMS OF USE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.

IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIVE U.S. DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BENSHERMAN.COM CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF ADVERTISING FEES TO BENSHERMAN.COM THROUGH THE USE OF A CREDIT CARD (A "CREDIT CARD PROCESSOR"). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR BENSHERMAN.COM, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE "RELEASED PARTIES") SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN) SUFFERED BY YOU AS A RESULT OF THE FAILURE OF BENSHERMAN.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BENSHERMAN.COM. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF BENSHERMAN.COM TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BENSHERMAN.COM. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS PARAGRAPH.

USER DATA

If you create any settings, surveys, fields or functions in the Product or input, add or export any data into or from the Product (collectively, the "User Data"), none of the BENSHERMAN.COM Parties shall have any liability or responsibility for any of such User Data, including the loss, destruction or use by third parties of such User Data. It is your responsibility to make back-up copies of such User Data.

YOUR LIABILITY

If you cause a technical disruption of the Product, you agree to be responsible for any and all liabilities, costs and expenses (including reasonable attorneys' fees and costs of enforcement) arising from or related to that disruption. Upon your breach of any term of these Terms of Use, BENSHERMAN.COM ‘s remedies shall include any damages and relief available at law or in equity as well as interruption and/or termination of your access to the Product or any portion thereof and permanent deletion or destruction of all portions of the Product within your possession, custody or control. If BENSHERMAN.COM retains any third party to obtain any remedy to which it is entitled under these Terms of Use, BENSHERMAN.COM shall be entitled to recover all costs, including attorney's fees or collection agency commissions, BENSHERMAN.COM incurs.

INDEMNITY

You agree to indemnify, defend, and hold harmless the BENSHERMAN.COM Parties from and against any third party action, suit, claim or demand and any associated losses, expenses, damages, costs and other liabilities (including reasonable attorneys' fees), arising out of or relating to your (and your users') Submitted Content, use or misuse of any portion of the Product, or your violation of these Terms of Use. You shall cooperate as fully as reasonably required in the defense of any such claim or demand. BENSHERMAN.COM and any third party involved in creating, producing, or delivering the Product reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, at your expense, and you shall not in any event settle any such matter without the written consent of BENSHERMAN.COM and any such third party.

COOKIES

Some areas of this Product use and require that your computer accept "cookies". Cookies are small text files that are stored on your computer to keep track of settings or data for a particular web site. Cookies make it possible and easier for you to access and use certain areas of this Product. If you have disabled cookies from within your browser, or if you are running third-party software that intercepts or deletes cookies, you may not be able to visit certain areas of the Product.

TRADEMARKS

The Product employs various trademarks and service marks of BENSHERMAN.COM and of other third parties. All of these trademarks and service marks are the property of their respective owners. You agree not to use or display them in any manner without the prior written permission of the applicable trademark owner.

PROCEDURE FOR MAKING NOTIFICATION OF CLAIMS OF COPYRIGHT INFRINGEMENT

BENSHERMAN.COM and its affiliates respect the intellectual property of others, and we ask those posting or transmitting any content to or through this Site to respect copyright law. It is the policy of BENSHERMAN.COM to restrict and/or terminate in appropriate circumstances the ability to submit content and/or use this Product by individuals or entities that repeatedly submit infringing content in violation of these Terms of Use. If you believe that your work has been copied and is available on this Site or our other online services in a way that constitutes copyright infringement, you may notify the BENSHERMAN.COM DMCA registered agent at: Contact Us. Please provide us with the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Services;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

OWNERSHIP

You acknowledge that BENSHERMAN.COM and its licensors have and shall retain exclusive ownership of all proprietary rights in or to the Product, including all U.S. and international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. You shall have no right or interest in any portion of the Product except the right to use the Product as set forth in these Terms of Use. You acknowledge that the Software, Database, Content, Information, and Product constitute the valuable property and confidential copyrighted information of BENSHERMAN.COM and its licensors (collectively, the "Proprietary Information"). You agree to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in the Proprietary Information, (b) not challenge BENSHERMAN.COM and its licensor's ownership of (or the validity or enforceability of their rights in and to) the Proprietary Information, and (c) not remove, conceal, obliterate or circumvent any copyright or other notice or license, use or copying technological measure included in the Product. You shall be liable for any violation of the provisions of these Terms of Use by your employees, Independent Contractors, affiliates and agents and for any unauthorized use of the Product by such persons.

NOTICE -- U.S. GOVERNMENT RIGHTS/COMMERCIAL TECHNICAL DATA AND SOFTWARE UNPUBLISHED, RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES

This Site contains commercial technical data and computer software that have been privately developed and are normally vended commercially under a license or lease agreement restricting their use, disclosure and reproduction. In accordance with FAR 12.211, 12.212, 27.405(b)(2) and 52.227-19 and DFARS 227.7202, 227.7102 and 252.227-7015, as well as other applicable supplemental agency regulations, use, reproduction, disclosure and dissemination of this commercial technical data and computer software are governed strictly in accordance with BENSHERMAN.COM ‘s commercial license agreements, including these Terms of Use.

EXPORT RESTRICTIONS

This Site is controlled and operated by BENSHERMAN.COM from its offices within the United States. BENSHERMAN.COM makes no representation that any portion of the Product or other material accessed through this Site is appropriate or available for use in other locations, and access to them from other countries where their contents are illegal is prohibited. Those who choose to access the Product or the Site from other locations do so at their own volition and are responsible for compliance with applicable local laws. You may not export or re-export any portion of the Product except in full compliance with all United States laws and regulations, and this Terms of Use. In particular, no portion of the Product may be exported or re-exported into (or to a national or resident of) any country to which the United States embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.

JURISDICTION

BENSHERMAN.COM is headquartered in the State of New York of the United States. These Terms of Use and your use of this Product shall be governed by the laws of the State of New York without regard to its conflicts of laws principles. The federal and state courts located in the State of New York, New York shall be the exclusive jurisdiction for any action brought against BENSHERMAN.COM in connection with these Terms of Use or use of the Product. You irrevocably consent to the jurisdiction of the federal and state courts located in the State of New York for any action brought against you in connection with these Terms of Use or use of the Product. All disputes arising outside of the United States shall be settled by arbitration held in London, England and in accordance with the Rules of Arbitration and Conciliation of the International Chamber of Commerce. All arbitrators shall be fluent in English and all documents submitted in connection with the arbitration shall be in English. Judgment upon an arbitration award may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement. If any material in this Product, or your use of the Product, is contrary to the laws of the place where you are when you access it, or if BENSHERMAN.COM is not licensed as required by applicable laws or regulations in such locale, the Product is not intended for you, and we ask you not to use the Product. You are responsible for informing yourself of, and complying with, the laws of your jurisdiction.

MODIFICATIONS TO PRODUCT; CHANGES TO THESE TERMS

BENSHERMAN.COM is continuously updating and changing the Product, and reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Product (or any part thereof) with or without notice. You agree that BENSHERMAN.COM shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Product (or any part thereof). Additionally, we reserve the right, in our complete, sole, absolute, and unmitigated discretion, to change these Terms of Use at any time by posting revised terms on the Product. It is your responsibility to check periodically for any changes we may make to the Product and these Terms of Use. Your continued use of this Product following the posting of changes to these terms or other policies means you accept the changes.

MISCELLANEOUS

These Terms of Use contain the entire understanding of the parties with respect to the Product and supersede any prior oral or written statements and documents with respect to such subject matter; provided that these Terms of Use do not supersede any written license agreement between the parties. Your obligations hereunder are binding on your successors, legal representatives and assigns. You may not assign or transfer (by operation of law or otherwise) these Terms of Use or any portion hereunder, in whole or in part, without the prior written consent of BENSHERMAN.COM. In the event any portion of these Terms of Use not being of a fundamental nature is held to be invalid, illegal or unenforceable, such part shall be deemed severed from these Terms of Use without invalidating the remaining provisions of these Terms of Use or affecting the enforceability of such remaining provisions. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision. No waiver by BENSHERMAN.COM of any right under or term or provision of these Terms of Use will be deemed a waiver of any other right, term, or provision of these Terms of Use at that time or a waiver of that or any other right, term, or provision of these Terms of Use at any other time. These Terms of Use apply to your use of the Product and not to any other areas, including, without limitation, BENSHERMAN.COM research activities. Headings are for reference only. All notices to BENSHERMAN.COM pertaining to these Terms of Use will be in writing, mailed by registered or certified mail, return receipt requested, or delivered by a well-recognized overnight U.S. or international carrier, delivered to Marquee Brands, 330 West 34th Street, FL 15, New York, NY 10001. BENSHERMAN.COM reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes. Your use of the BENSHERMAN.COM Website following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms.

DISPUTE RESOLUTION AND BINDING ARBITRATION 

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.

As detailed herein, these Terms mandate that all disputes between you and BENSHERMAN.com be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms further mandate that all disputes (except those identified below in “Exceptions to Arbitration”) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of this section carefully as it may significantly affect your legal rights. For purpose of this section, references to this “Section” refer to the Dispute Resolution and Binding Arbitration section, and references to a numbered “Section” refer to the numbered subsections below.

Arbitration Agreement

1.      Informal Dispute Resolution Procedure

For any and all disputes between you and BENSHERMAN.COM, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against you in arbitration.

To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against BENSHERMAN.COM that you initiate, you agree to send to BENSHERMAN.COM (i) a written description of the dispute and (ii) the email address(es) associated with your account through the following contact form. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that BENSHERMAN.COM initiates, we will send our written description of the dispute to the email address associated with your use of the Services.

If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, you and BENSHERMAN.COM agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.

A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

2.     Binding Arbitration.

After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process (Section 1), and only if those efforts fail, then either party may initiate arbitration as set forth in this Section.

If you determine to initiate arbitration, a copy of the arbitration demand must be sent here. If BENSHERMAN.COM is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of the Services.

(a) Mutual Arbitration Agreement. Except as set forth in Section 3 below, you and BENSHERMAN.COM agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms—including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section 2 (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section 2.

 

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in Sections 4 and 5.

 

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and BENSHERMAN.COM expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.

 

Except as set forth in Section 2(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

(b) WAIVER OF RIGHTS INCLUDING JURY TRIAL. THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND BENSHERMAN.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(c) CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER. YOU AND BENSHERMAN.COM ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 2(c) AND SECTION 2(e)(vi) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF BENSHERMAN.COM PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this Section, or that the provisions in this Section 2 are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or BENSHERMAN.COM from participating in a class-wide settlement of claims.

(d) Arbitration Location. If you are a resident of the United States, arbitration will take place in the county where you reside. For residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in New York, New York, United States of America, unless you and BENSHERMAN.COM otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.

For any arbitration conducted in New York, New York, United States of America, You and BENSHERMAN.COM agree to submit to the personal jurisdiction of any federal or state court in New York, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available

(e) The Arbitration Rules

 

(i) The Provider. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.

 

Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.

You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

 

(ii) Arbitration Demand Must Contain Sufficient Information. Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms.

 

(iii) Arbitration Conducted on Papers in Some Circumstances. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents that you and BENSHERMAN.COM submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

 

(iv) Dispositive Motions. Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.

 

(v) Batching. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section 2(e)(i) if NAM is unavailable) against BENSHERMAN.COM within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with 2(e)(i) if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by BENSHERMAN.COM and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

 

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.

You agree to cooperate in good faith with BENSHERMAN.COM and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.

 

(vi) No Class or Consolidated Arbitration Absent Written Consent. Unless BENSHERMAN.COM otherwise consents in writing, which it may do on a case-by-case basis, BENSHERMAN.COM does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section 2(c) and this Section 2(e)(vi).

 

(vii) Arbitration Award. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 2(c) above, and also must be consistent with the terms of the “Limitation of Liability” section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

 

  1. Exceptions to Arbitration.

 

Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in Section 2:

 

(a) IP Disputes. Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in the County of New York, New York.

 

(b) Small Claims Court and Statutes of Limitation. Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.

 

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

 

(c) Jurisdiction/Service of Process. For any dispute not subject to arbitration under this Section 14, you and BENSHERMAN.COM agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New York, New York. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

 

  1. 30-Day Right to Opt Out.

 

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out here. The notice must be sent within 30 days of August 21, 2024 or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of Section 2. If you opt-out of the arbitration provisions, BENSHERMAN.COM also will not be bound by them.

 

If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If BENSHERMAN.COM changes this Section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice as described in Section 4. 

BENSHERMAN.COM will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of this Section by you and BENSHERMAN.COM. 

  1. Changes to this Section.

BENSHERMAN.COM will provide 30 days’ notice of the date of any material changes to this Section. Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which BENSHERMAN.COM does not have actual notice are subject to the revised clause.

Class Action Waiver

 

If you have a dispute with BENSHERMAN.COM that is not subject to the binding arbitration provisions in the Dispute Resolution and Binding Arbitration section above, then to the full extent permitted by law, you agree you may only resolve your disputes with BENSHERMAN.COM on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated, private attorney general or other representative action.  Likewise, these Terms and this class action waiver preclude you from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, private attorney general and/or other representative action brought against BENSHERMAN.COM by someone else.

 

If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

FORCE MAJEURE

The Website contains functionalities and services that allow sending, delivering or receiving information between users, which may be relayed or carried through BENSHERMAN.COM, public, third parties' or other networks, systems, servers, websites or applications (e.g. telephone and cellular networks, email servers etc.) (the "Third Parties' Network"). The Third Parties' Networks are not controlled by BENSHERMAN.COM in any way and BENSHERMAN.COM shall not be responsible for the performance, availability, functionality, quality or reliability of any of the Third Parties' Networks or the information sent, delivered, relayed, carried or received through the Third Parties' Networks. Notwithstanding anything herein, BENSHERMAN.COM does not warrant or guarantee that the information sent, relayed, carried or delivered through these Third Parties' Networks will reach its destination or its correct address or recipient or that the details of the recipient or sender are correct or accurate. BENSHERMAN.COM shall not be liable for, and excused from, any failure to deliver or perform, or for any delay in delivery or performance, due to causes beyond its reasonable control, after exercising its best commercially reasonable efforts to remedy any such failure or delay, including without limitation any government actions, fire, work stoppages, civil disturbances, interruptions of power or communications to BENSHERMAN.COM or any facilities used by or for BENSHERMAN.COM failure of internet, hosting, telecommunications, or other services to BENSHERMAN.COM or facilities used by or for BENSHERMAN.COM, natural disasters, acts of God, or acts of terrorism or war.

GENERAL

You agree that no joint venture, partnership, employment, or agency relationship exists between you and BENSHERMAN.COM as a result of these Terms and Conditions or your use of the Website.

BENSHERMAN.COM performance under these Terms and Conditions is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of BENSHERMAN.COM right to comply with law enforcement requests or requirements relating to your use of this Website or information provided to or gathered by BENSHERMAN.COM with respect to such use.

If you are found to be in breach or violation of these Terms and Conditions, you agree to pay the actual damages suffered by BENSHERMAN.COM, including, but not limited to, attorney fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms and Conditions, BENSHERMAN.COM reserves the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms and Conditions.

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