IF YOU LIVE IN THE UNITED STATES, BY USING THIS WEBSITE OR DATABASE, YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD YOU AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THIS WEBSITE OR DATABASE AND THE BENCHMARKING COMPANY, LLC’S PRODUCTS OR SERVICES, AS STATED FULLY IN SECTION 22 BELOW.
1. Key Terms
“User” means any visitor to TBC’s websites, located at http://benchmarkingcompany.com and http://www.onevoicebeauty.com, or any visitor to TBC’s PinkPanel™ website, located at https://www.facebook.com/thePinkPanel/, or to TBC’s GuysthatGroom™ website, located at https://www.facebook.com/guysthatgroom/, regardless of whether the visitor registers for the Site or Database or purchases any TBC products or services and is referred to herein as “user” or “you.”
The Benchmarking Company, LLC owns and operates the websites located at http://benchmarkingcompany.com and http://www.onevoicebeauty.com (collectively, the “Site”), as well as thePinkPanel™ and GuysthatGroom™ sites listed above, through which The Benchmarking Company advertises and sells its products and services and solicits and collects consumer information from survey participants.
“Content” means text, graphics, images, software (excluding the Database), audio, video, information, and other materials.
“Website Content” refers to any and all materials contained on the Site and Database, including, without limitation, all TBC product logos, design, text, graphics, software, other files, and the selection and arrangement thereof.
2. Use of Site and Database
3. Eligibility to Use The Site and Database
The Site and Database are intended solely for persons who are eighteen (18) years or older. Any access to or use of the Site or Database by anyone under the age of eighteen (18) is expressly prohibited. By accessing or using the Site or Database, you represent and warrant that you are at least eighteen (18) years old.
To join ThePinkPanel™ Database, you can register on Facebook at www.facebook.com/thePinkPanel/. To join GuysthatGroom™ Database, you can register on Facebook at www.facebook.com/guysthatgroom/. By subscribing to the either Database, you are submitting your information for inclusion in the Database and representing to The Benchmarking Company that you are authorized to provide consent to receive emails from The Benchmarking Company. You may be asked to participate in online research studies being conducted by The Benchmarking Company about certain products or trends. If you choose to complete any surveys, your survey answers and testimonials about products will be retained indefinitely in a database and may be used in future advertising.
If you require assistance with the Database, you may email us at firstname.lastname@example.org. When emailing for support, please be sure to include your contact information and a detailed description of your question or support issue.
To cancel your participation in the Database, email us at email@example.com at any time to be removed from any future alerts or offers. Your participation in the Database will then cease, and we will endeavor to send you no further messages.
The Benchmarking Company is not responsible for incomplete, lost, late, or misdirected messages, including, but not limited to, undelivered messages resulting from any form of filtering by your service provider, and cannot guarantee that each user will receive the benefit of the Database for each message sent.
6. User Conduct
You must only use this Site or Database for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site or Database. You may not, without The Benchmarking Company’s written consent:
(i) copy, reproduce, use, or otherwise deal with any content on the Site or Database;
(ii) modify, distribute, or re-post any content on the Site or Database for any purpose; or
(iii) use the content of the Site or Database for any commercial exploitation whatsoever.
In using the Site or Database, you further agree not to
(i) disrupt or interfere with the security of, or otherwise abuse, the Site or Database, or any services, systems resources, accounts, servers, or networks connected to or accessible through the Site or Database, or affiliated or linked websites;
(ii) disrupt or interfere with any other user’s enjoyment of the Site or Database, or affiliated or linked websites;
(iii) upload, post, or otherwise transmit through or on the Site or Database any viruses or other harmful, disruptive, or destructive files;
(iv) use, frame, or utilize framing techniques to enclose any TBC trademark, logo, or other proprietary information (including, but not limited to, the images found on the Site, website content, the content of any text, or the layout/design of any page or form contained on a page) without The Benchmarking Company’s express written consent;
(v) use meta tags or other “hidden text” utilizing a TBC name, trademark, or product name without The Benchmarking Company’s express written consent;
(vi) deep link to the Site or Database without The Benchmarking Company’s express written consent;
(vii) create or use a false identity on the Site or Database, share your account information, or allow any person besides yourself to use your account to access the Site or Database; (viii) collect or store personal data about others;
(ix) attempt to obtain unauthorized access to the Site or Database or portions of them that are restricted from general access; and
(x) post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law. You also agree not to post any copyrighted material unless the copyright is owned by you.
You also agree that you will comply with all applicable local, national, and international laws and regulations relating to your use of or activities on the Site and Database. To the extent permissible by law, The Benchmarking Company will not be responsible or liable to any third party for the content or accuracy of any materials posted by you or any other user on the Site or Database. We have the right to remove any material or posting you make on the Site or Database if, in our sole discretion, such material does not comply with the standards set out in these Terms.
If you do not agree to these Terms, you do not have our consent to obtain information from or otherwise use the Site or Database. Failure to use the Site or Database in accordance with these Terms may subject you to civil or criminal penalties.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE OR DATABASE, AND/OR DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR VIA THE DATABASE, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR DATABASE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR DATABASE. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.
7. Changes to The Site or Database
The Benchmarking Company reserves the right, at its sole discretion, to modify the Site or Database and these Terms at any time and without prior notice. If we modify these Terms, we will either email you or post the modification on the Site or via the Database. We will also update the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Site or Database after we have posted a modification on the Site or via the Database, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not agreeable to you, your only recourse is to stop using the Site or Database.
The Benchmarking Company may, in its sole discretion, terminate, change, modify, suspend, make improvements to, or discontinue any aspect of the Site or Database and any products or services available through or outside the Site or Database, temporarily or permanently, including the availability of any features of or access to the Site or Database, after providing reasonable notice, and you agree that The Benchmarking Company will not be liable therefor.
8. Linked Websites
The Site and Database may contain links to third party websites or resources. The Benchmarking Company makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of websites accessible by hyperlinks from the Site or Database, or websites linking the Site or Database. The linked websites are not under the control of The Benchmarking Company, and The Benchmarking Company is not responsible for the content of any linked website or any link contained in a linked website, or any review, changes, or updates to such websites. You accept sole responsibility for and assume all risk arising from your use of any such websites or resources, or the content, products, or services on or available from such websites or resources.
9. Copyright and Trademarks
The Site and Database, including all of the website content, are protected by copyright, trademark, and other laws of the United States. Unless expressly stated otherwise, The Benchmarking Company retains other proprietary rights in all products available through the Site. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without the prior written consent and permission of The Benchmarking Company or the respective copyright owner. You may not, without the express written permission of The Benchmarking Company or the respective copyright owner
(i) copy, publish, or post any materials on any computer network or broadcast or publications media;
(ii) modify the materials; or
(iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not
(i) sell, resell, or make commercial use of the Site or Database, their website content, services, or products obtained through the Site or Database;
(ii) collect or use any product listings or descriptions;
(iii) make derivative uses of the Site or Database or their website content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of The Benchmarking Company or any third party.
Together with other logos and product names appearing on the Site or Database, the following includes a partial list of trademarks and/or registered trademarks of The Benchmarking Company in the United States: PinkPanel™; GuysthatGroom™; OneVoiceBeauty.com™; Beauty by the Numbers™ and PinkReports™. These and all other TBC trademarks may not be copied, imitated, or used, in whole or in part, without the prior written permission of The Benchmarking Company. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of The Benchmarking Company, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of The Benchmarking Company. Other names and brands on the Site and Database may be claimed as the property of others.
10. Copyright Policy and Copyright Agent
It is The Benchmarking Company’s policy to respect the copyright and intellectual property rights of others. The Benchmarking Company may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, The Benchmarking Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others.
The Benchmarking Company complies with the Digital Millennium Copyright Act. The Benchmarking Company accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. If you believe The Benchmarking Company or any user of the Site or Database has infringed your copyright in any material way, please notify The Benchmarking Company, and provide the following:
• an identification of the intellectual property right claimed to have been infringed;
• an identification of the material you claim is infringing so that we may locate it on the Site or Database;
• 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 owner or its licensee, or the agent of either of the foregoing, or the law;
• a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
• that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by email to firstname.lastname@example.org or by mail Attn: DMCA Agent, The Benchmarking Company, LLC, 11710 Plaza America Drive, Suite 2000, Reston, VA 20190.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, the remainder of this section, immediately below, does not apply to you.
You agree to indemnify and hold harmless The Benchmarking Company, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers from any claim, action, demand, loss, or damages made or incurred by any third party arising out of or relating to your use of the Site or Database, your violation of these Terms, or your violation of any rights of a third party, to the extent permissible by law. YOU AGREE TO BE RESPONSIBLE FOR SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
11. Product Information
For questions about the products or services on the Site or orders placed through the Site or otherwise, please email us at email@example.com.
12. Product Descriptions
We have taken reasonable precautions to ensure that all product descriptions, prices, and other information shown on the Site are correct and fairly described. By placing an order on the Site, you are making an offer to The Benchmarking Company. To the extent permitted by law, The Benchmarking Company reserves its right to not accept the offer if there has been a material error in the description of the product, or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise.
Please also note that the terms of any products or services offered by The Benchmarking Company and/or purchased by you, such as pricing, specifications, delivery times, and/or contents are subject to change by The Benchmarking Company by providing you reasonable advanced notice, including by posting notice of the change on the Site or sending you an email to the address you provided at purchase.
13. Order and Payment Information
If you use the Site or other means to purchase a product or service, payment must be received by The Benchmarking Company prior to The Benchmarking Company’s acceptance of an order, unless otherwise agreed in advance by The Benchmarking Company. All The Benchmarking Company products may be subject to sales tax, which will be applied to your order total. The products available on the Site are for your use only. You may not sell or resell any of the products or services that you purchase or otherwise receive from us. The Benchmarking Company may need to verify information you provide before The Benchmarking Company accepts an order, and may cancel or limit an order any time after it has been placed. We reserve the right, with or without notice, to cancel any order, or portion thereof, that we believe, in our sole discretion, may result in the violation of our Terms. If payment has already been made and your order is cancelled or altered, The Benchmarking Company will refund you any payment made for the product that will not be shipped due to cancellation or alteration of an order in the same tender as the original purchase. The Benchmarking Company expressly conditions its acceptance of your order on your agreement to these Terms.
In ordering products through the Site, or completing surveys through the Database, you agree to provide only true, accurate, current, and complete information. You hereby certify that any email account you provide to The Benchmarking Company is registered by you. The Benchmarking Company will have the right to bar your access to and use of the Site or Database if it has reasonable grounds to believe you have provided untrue, inaccurate, not current, or incomplete information to The Benchmarking Company, or for any other reason The Benchmarking Company, in its sole discretion, deems appropriate. You agree that if you are ordering or purchasing products on behalf of someone else, you have sufficient authority to bind that person to these Terms. You agree that your placement of an electronic order on the Site or Database is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
14. Disclaimer of Warranties Relating to Use of the Site And Database
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO THE SITE OR DATABASE REMAINS WITH YOU. NEITHER THE BENCHMARKING COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR DATABASE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR DATABASE, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR DATABASE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR DATABASE, WHETHER BASED ON WARRANTY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE), AND WHETHER OR NOT THE BENCHMARKING COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE BENCHMARKING COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES IN THE WEBSITE CONTENT OR THESE TERMS AND YOUR USE OF THE SITE OR DATABASE INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY PRODUCTS OR SERVICES VIA THE SITE OR DATABASE, OR FROM THE USE OF OR INABILITY TO USE THE SITE OR DATABASE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR PRODUCTS OR SERVICES PURCHASED VIA THE SITE OR DATABASE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE BENCHMARKING COMPANY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
You agree to release, defend, indemnify, and hold harmless The Benchmarking Company, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers from and against any claim, action, demand, loss, liability, expenses, or damages (compensatory, direct, incidental, consequential, or otherwise), arising out of or in any way connected with your access to or use of the Site or Database or your violation of these Terms. YOU AGREE TO BE RESPONSIBLE FOR SUCH DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
16. Limitations on Liability
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND TERMS (WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE) TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT THE BENCHMARKING COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES, CLAIMS, OR LOSSES INCURRED (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED, OR UNDER ANY THEORY OF LIABILITY – EVEN THE BENCHMARKING COMPANY’S OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH
(I) THE SITE OR DATABASE;
(II) THE USE OR INABILITY TO USE THE SITE OR DATABASE;
(III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE OR DATABASE;
(IV) THE PURCHASE OR USE OF ANY PRODUCTS THROUGH THE SITE, DATABASE, OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE;
(VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR
(VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF THE BENCHMARKING COMPANY OR ITS REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE BENCHMARKING COMPANY’S LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO THE BENCHMARKING COMPANY FOR ANY PRODUCTS OR SERVICES SUPPLIED BY THE BENCHMARKING COMPANY THROUGH YOUR USE OF THE SITE, DATABASE, OR OTHERWISE.
THE BENCHMARKING COMPANY WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
THESE EXCLUSIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF VIRGINIA. IF ANY PROVISION OR PART-PROVISION OF THESE TERMS IS DECLARED INVALID, UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, IT WILL BE DEEMED SEVERABLE AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THESE TERMS.
The terms of this section survive any termination of these Terms.
17. International Users
Our website is controlled, operated, and administered by The Benchmarking Company from its offices in Reston, Virginia, United States of America. The Benchmarking Company makes no representation that materials on the Site or Database are appropriate or available for use at other locations outside the United States, and access to them is prohibited from territories where the contents or products available through the Site or Database are illegal. You may not use the Site or Database or export its website content or products in violation of United States export laws and regulations. If you access the Site or Database from a location outside of the United States, you are responsible for compliance with all local laws.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
Notwithstanding any of these Terms, The Benchmarking Company reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Site or Database and to block and prevent future access to and use of the Site or Database. You agree that The Benchmarking Company will not be liable for any termination of your use of or access to the Site or Database.
19. No Third Party Beneficiaries
Only you and The Benchmarking Company are entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and The Benchmarking Company. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You and The Benchmarking Company also agree that if The Benchmarking Company assigns, transfers, or sub-contracts any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.
If any provision of these Terms, or part thereof, is deemed invalid, unlawful, void, or for any reason unenforceable, then that provision, or part thereof, will be deemed severable from the rest of the Terms and will not affect the validity or enforceability of any remaining provisions or part thereof.
The terms of this section survive terminations of the Terms.
It is the express intent of the parties that these Terms and all related documents have been drawn up in English.
22. DISPUTES, BINDING AND CONFIDENTIAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
(I) TRADE SECRET MISAPPROPRIATION,
(II) PATENT INFRINGEMENT,
(III) COPYRIGHT INFRINGEMENT OR MISUSE, OR
(IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you and The Benchmarking Company agree that a court, not an arbitrator, may decide if a claim falls within one of these four exceptions.
Confidential and Binding Arbitration. You and The Benchmarking Company agree to confidential and binding arbitration of all Disputes between the parties pursuant to the provisions in this section. ARBITRATION MEANS THAT YOU AND THE BENCHMARKING COMPANY WAIVE OUR RESPECTIVE RIGHTS TO A JUDGE OR JURY IN A COURT PROCEEDING AND GROUNDS FOR APPEAL ARE LIMITED. You and The Benchmarking Company also agree that
(i) these Terms memorialize a transaction in interstate commerce;
(ii) the Federal Arbitration Act (9 U.S.C. §§1, et seq.) governs the interpretation and enforcement of this section; and
(iii) this section will survive termination of these Terms. The arbitrator may award the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief warranted by a claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation, and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator will be final and enforceable by any court with jurisdiction over the parties.
Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court. The Benchmarking Company does not hereby waive any defense and expressly reserves its right to assert any defense available to it in any such action, whether jurisdictional or otherwise.
Dispute Notice. In the event of a Dispute, you or The Benchmarking Company must first send to the other party a notice of the Dispute that includes a written statement that sets forth the name, address, and contact information of the party giving notice, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to The Benchmarking Company must be addressed and sent by certified mail to: Attn: Dispute Notice Agent, The Benchmarking Company, LLC, 11710 Plaza America Drive, Suite 2000, Reston, VA 20190 (the “The Benchmarking Company Notice”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If The Benchmarking Company and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, either you or The Benchmarking Company may commence an arbitration proceeding pursuant to this section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND THE BENCHMARKING COMPANY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR WILL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO THE ARBITRATION PROCEEDING.
Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be governed by the terms set forth in this section and the Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS) that are in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267. The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only. If there is a conflict between the JAMS Procedures and the terms set forth in this section, the terms in this section will govern. The parties may, in arbitration, seek all remedies otherwise available to them pursuant to federal, state, or local laws. All Disputes will be resolved by a single neutral JAMS arbitrator, and both parties will have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this section. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is for
(i) trade secret misappropriation,
(ii) patent infringement,
(iii) copyright infringement or misuse, or
(iv) trademark infringement or dilution, each of which is excluded from the definition of “Dispute” as stated above. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone will take place in a location reasonably accessible from your primary residence, or in Washington, DC, at your option.
a. Initiation of Arbitration Proceeding. If either you or The Benchmarking Company decide to arbitrate a Dispute, the parties agree to the following procedure:
• Write a Demand for Arbitration. The Demand must include a description of the Dispute and the amount of damages sought to be recovered (the “Demand for Arbitration”). A sample demand for arbitration is available at http://jamsadr.com.
• Send three (3) copies of the Demand for Arbitration, plus the appropriate filing fee, to:
555 13th Street, NW
Suite 400 West
Washington, DC 20004
• Send by certified mail one (1) copy of the Demand for Arbitration to the other party at the same address listed for the Dispute Notice, or as otherwise agreed to in advance by the parties.
b. Hearing Format. In all hearings, the arbitrator will issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. The amount of any settlement offer made by The Benchmarking Company or you will not be disclosed to the arbitrator, if at all, until after the arbitrator determines the amount, if any, to which you or The Benchmarking Company is entitled. The discovery or exchange of non-privileged information relevant to the Dispute will be governed by the JAMS Optional Expedited Arbitration Procedures.
c. Arbitration Fees. The Benchmarking Company will pay, or (if applicable), reimburse, you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or The Benchmarking Company pursuant to the terms of this section.
d. Opt-Out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter by certified mail to The Benchmarking Company, LLC at 11710 Plaza America Drive, Suite 2000, Reston, VA 20190 within thirty (30) days of your first visit to and use of the Site or Database that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions in these Terms will continue to apply.
Amendments to this Section. Notwithstanding any provision in this section to the contrary, you and The Benchmarking Company agree that if The Benchmarking Company makes any future amendments to the dispute resolution procedure and class action waiver provisions set forth in this section (other than a change to the parties’ addresses), The Benchmarking Company will post notice of such amendments on the Site and Database and you will have thirty (30) days from your first visit to, or use of, the Site or Database containing such amendments to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you agree you will arbitrate any Dispute between us in accordance with the language of this section as stated in this current section, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to such future amendments.
Severability. If any provision of this section is found to be unenforceable, that provision will be severed with the remainder of this section and these Terms remaining in full force and effect. The foregoing will not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire section will be null and void. The terms of this section will otherwise survive any termination of these Terms.
23. Exclusive Venue for Other Controversies
The Benchmarking Company and you agree that any controversy excluded from the dispute resolution procedure or class action waiver provisions in these Terms (other than an individual action filed in small claims court) will be filed only in the Fairfax Circuit Court, 19th Judicial Circuit of Virginia, or the United States District Court for the Eastern District of Virginia, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
24. Entire Agreement
25. Time Period for Bringing Claims
You and The Benchmarking Company agree that any cause of action either may have with respect to the Site, Database, or The Benchmarking Company’s products or services must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate an arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, your agreement to this provision shortens the time within which you may bring a Dispute.
26. Miscellaneous Terms
The section titles used in these Terms are purely for convenience and carry with them no legal or contractual effect.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and The Benchmarking Company, and you do not have any authority to create any obligation on The Benchmarking Company’s behalf. You may not assign or transfer any rights or obligations of these Terms, by operation of law or otherwise, without The Benchmarking Company’s written consent. Subject to the foregoing, these Terms will be binding on, inure to the benefit of, and be enforceable against you and The Benchmarking Company and their respective successors and assigns.
The terms of this section survive any termination of these Terms.
27. Other Important Terms
These Terms supersede any other terms and conditions previously posted or published by The Benchmarking Company and any other representations or oral statements made by us to you. No delay by The Benchmarking Company in exercising any right or remedy under these Terms will operate as a waiver of that right or remedy or will affect our ability to subsequently exercise that right or remedy. Any waiver must be agreed by The Benchmarking Company in writing.