Customer Service Agreement
Last Updated: May 5, 2022
Nuplak LLC, 10866 Wilshire Blvd - Fl 10, Los Angeles , CA 90024, EIN 88-3170751
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
This Customer Service Agreement (the “Agreement”) governs your (“You” or “Your”) use of Nuplak LLC’s (“Nuplak”) website (the “Website”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE, INCLUDING PLACING AN ORDER WITH NUPLAK FOR MANUFACTURING SERVICES (THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NUPLAK, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES. Nuplak’s General Terms and Conditions available at: www.Nuplak.com/terms (“General Terms”) are incorporated herein by reference.
PLEASE NOTE that Nuplak may modify these terms and conditions at any time, and such modifications shall be effective immediately upon posting of the modified version on the Website for orders placed after such modifications have been posted. Nuplak will also update the “Last Updated” date at the top of this Agreement. If Nuplak makes any material changes, and You have registered with Nuplak to create an Account (as defined below), Nuplak may also send You an email to the last email address You provided pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting or providing notice of such changes on the Website for existing users (whichever is earlier). Nuplak may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or Services is permitted. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website and/or Services. Otherwise, Your continued use of the Website and/or Services shall be deemed Your conclusive acceptance of the modified terms and conditions.
1.1 About the Services. Nuplak hosts and maintains an online platform available at the Website that enables Nuplak’s buyers to customise and purchase musical awards for which they, or the persons the represent, are demonstrably eligible.
Nuplak maintains a vendor manufacturing program consisting of a network of third-party manufacturers (each, a “Partner”) capable of performing manufacturing services. When a buyer purchases one or more awards on the Website, Nuplak will either manufacture, or subcontract with one of Nuplak’s Partners to have manufactured, the awards pursuant to the buyer’s order.
1.2 Responsibilities When Using the Services. By using the Services, You agree to:
- Comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, privacy any export control laws;
- Upload and disseminate only content or information that You own all required rights to under law, are authorized to disseminate (and are not subject to any confidentiality obligations), and do so only consistent with applicable law and as permitted by any agreements to which You are bound;
- Use reasonable efforts to prevent unauthorized access to or use of the Services;
- Monitor and control all activity conducted through Your Account in connection with the Services;
- Promptly notify Nuplak if You become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving Your Account, including any loss, theft, or unauthorized disclosure or use of Your Account.
If Nuplak has reason to believe that You have failed to comply with the above, Nuplak may without notice suspend or terminate Your access to the Services and refuse any and all current or future use of the Services (or any portion thereof).
In order to use the Services, You are required to register for an account (“Account”). In registering for the Services, You agree to (1) provide true, accurate, current and complete information about You as prompted in the Website account details section (“Registration Data”); and (2) maintain and promptly update Your Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under Your Account, and Nuplak will not be liable for any loss or damage (of any kind and under any legal theory) to You or any third party arising from Your inability or failure for any reason to comply with these Terms and any applicable General Terms. You may not share Your Account or password with anyone, and You agree to (a) notify Nuplak immediately of any suspected or confirmed unauthorized use of Your password or any other breach of security; and (b) exit from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current or incomplete, or Nuplak has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Nuplak has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website and Service (or any portion thereof).
- ORDERING PROCESS
3.1. Placing Orders. In order to place an order, you must indicate (I) the relevant works, the (ii) the awards thereto applicable, (iii) the recipients of the award, and (iv) the number of awards to be manufactured pursuant to the terms of this Agreement. During the ordering process You may choose, from the list of available options, the material, colour, surface and size of the measurement (mm or inches) for your award. NUPLAK WILL NOT ALTER, MODIFY OR CHANGE THE SPECIFICATIONS OF ANY ORDER WITHOUT OBTAINING WRITTEN APPROVAL FROM YOU. You will be able to see and review the order and the price (production, delivery, and other taxes when applicable) provided by Nuplak to You before finalizing the order.
SINCE EACH ORDER IS CUSTOM MANUFACTURED, YOU MAY NOT CANCEL AN ORDER ONCE IT HAS BEEN PLACED. Nuplak, at its sole discretion, may permit a buyer to cancel an order and may charge a fee not to exceed 5% of the total order value if a buyer requests such a cancellation from Nuplak, provided that no work has been done for such an order as of the date of cancellation.
3.2 Specifications. If You place and pay for an order, Nuplak will, subject to the terms herein, manufacture, or have manufactured, the order in accordance with the specifications you have communicated. You are solely responsible for ensuring that the Specifications and other information You submit in Your order is accurate and complete before paying for it.
YOU MAY NOT AMEND OR MODIFY THE SPECIFICATIONS after YOU HAVE PLACED YOUR ORDER.
3.3 Nuplak Cancellations. Nuplak may, at any time, even during the manufacturing process, revoke and/or cancel any order, if there are technical or other reasons to do so. In such case, Nuplak will reimburse You all monies paid for such order, if any.
3.4 Limitations. Nuplak will manufacture Your order(s) in accordance with the manufacturing standards generally applied to musical awards, unless Nuplak has agreed to different standards in writing.
3.5 Subcontracting. You acknowledge and agree that Nuplak may subcontract or otherwise delegate any order you place to one of Nuplak’s Partners. As such, You acknowledge and agree that Nuplak may share Your order with our Partners in order to process and manufacture your order. You will not have any obligation to pay any Partner directly.
- PRICING AND PAYMENT; NUPLAK REFERRAL PROGRAM
4.1. Payment. You agree to pay all fees or charges to Your Account in accordance with the fees,
charges and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise
expressly agreed in advance by Nuplak, all invoices are due upon finalisation of the order.
If You choose to pay for an order by credit card, You must provide Nuplak with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Nuplak with Your credit card number and associated payment information, You agree that Nuplak is authorized to immediately invoice your Account for all fees and charges due and payable to Nuplak hereunder and that no additional consent or notice is required. You agree to immediately notify Nuplak of any change in Your billing address or the credit card used for payment hereunder. Nuplak reserves the right at any time to change its prices and billing methods, either immediately upon posting notice on the Website or by email delivery to You. All prices are calculated in US Dollars and payment to Nuplak must be in the form of US Dollars.
4.2. Taxes and Costs. Unless otherwise stated, the price quoted with respect to the manufacture of any order includes the cost for the Services rendered by Nuplak, the manufacturing of the order and the standard shipping (as selected by Nuplak), as well as all applicable sales and use taxes. Additional fees may apply for any alternate shipping methods and/or shipping insurance. You will be liable for all other transaction duties and taxes (other than taxes based on Nuplak’s net income).
4.3. Suspension of Services. Nuplak reserves the right to suspend performance hereunder (including the manufacture of the order) in the event You fail to pay all outstanding amounts when due and Nuplak retains full legal title to order until it has received full payment with respect to such order and payment on any other order that You have ordered. Nuplak reserves the right to refrain from manufacturing additional orders, or finalising an existing order, as long as outstanding issued invoices remain unpaid.
- SHIPMENT ESTIMATES; RISK OF LOSS IN TRANSPORT
5.1 Shipment Estimates. Any shipment dates communicated by Nuplak to You are mere estimates, calculated on the basis of the input data. The term of delivery generated by the online ordering system gives a preliminary indication of planned date of shipment though it does not bind Nuplak in any way. The estimated shipment date is based on the working conditions applicable at the time the agreement is concluded and on the punctual delivery of the materials ordered by Nuplak for the performance of the work. Should any delay arise, the shipment date may be extended and Nuplak will not be liable for such delay.
5.2 Risk of Loss. Unless otherwise agreed, all sales of orders shall be Ex-works Seller’s factory (Incoterms 2000). In the event that You require delivery of the order otherwise than Ex-works, You must contact Nuplak in writing in order to detail its requirements. Nuplak, at its discretion, shall arrange the delivery requirements including, without limitation, transport insurance, the mode of transport (Nuplak reserves the right to vary the mode of transport if any regulations or other relevant considerations so require) and any special packaging requirements. All costs, taxes, duties and charges related to fulfilling any of Your requests under this Section, shall be paid by You, unless otherwise agreed by both parties.
6.1. No Warranty. Upon delivery of an order, You should inspect it immediately and carefully. All Parts will be deemed accepted upon delivery to You. You acknowledge and agree that Nuplak will use commercially reasonable efforts to manufacture or have the order manufactured by our Partners, in accordance with Your Specifications.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NUPLAK DOES NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE, SERVICES, ORDER, OR ANY MATERIALS PROVIDED BY NUPLAK HEREUNDER.
6.2. Specifications Warranty; Remedy. Nuplak represents and warrants for a period of three (3) business days following the delivery of the order (the “Warranty Period”), that the order shall conform to the Specifications for such order. In the event You notify Nuplak during the Warranty Period that the delivered order does not to comply with the order in all material respects, Nuplak will, as Your sole and exclusive remedy, replace such non-conforming order at Nuplak’s sole cost and expense, provided (i) You return the non-conforming order(s) to Nuplak within three (3) business days of your notice of non-conformance, and (ii) Nuplak reasonably confirms such non-conformity. No returns will be accepted by Nuplak unless You have notified Nuplak within the Warranty Period. If You fail to contact Nuplak within the Warranty Period, Nuplak shall have no further obligations with respect to such order and ALL SALES WILL BE DEEMED FINAL AND SUCH ORDERS MAY NOT BE RETURNED TO NUPLAK.
- INTELLECTUAL PROPERTY
7.1. License. Subject to the terms herein, Nuplak grants to You a limited, revocable, nonexclusive license to use the Website for your personal or internal business purposes. Nuplak and its licensors retains all ownership and intellectual property rights to the Website and all content therein.
You shall not or permit any third party to:
(i) reverse engineer, disassemble or decompile the Website, the pricing and algorithms of Nuplak;
(ii) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website;
(iii) access the Website in order to build a similar or competitive website, application or service;
(iv) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;
(v) use the Website for any illegal or illicit purpose;
(vi) Share, transfer or otherwise provide access to an account designated for You to another person;
(vii) Misuse the Nuplak domain or use the Nuplak trademark;
(viii) Disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Website (e.g., a denial-of-service attack); or
(x) Gain unauthorized access to the Website or otherwise circumvent or violate the security of the Website, including without limitation:
(a) accessing content that is not intended for You;
(b) attempting to breach or breaching Website security or authentication measures;
(c) restricting, disrupting or disabling service to Website users, hosts, servers or networks by any means, or
(d) otherwise attempting to interfere with the proper working of the Website, including but not limited to by introducing any material that is malicious or technologically harmful.
7.2. Trademarks. The Website contains names, which are trademarks, service marks and/or brand names of Nuplak and may not be used without the written permission of Nuplak. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners.
With respect to Customer Data, you represent, warrant, and covenant that:
- The provision of the Customer Data to Nuplak and Nuplak’s contemplated use thereof complies with all laws, and you have received all necessary third-party approvals and consents with respect to the Services; and
- The Customer Data, and Nuplak’s use of the Customer Data, does not and will not infringe or violate the intellectual property rights or other rights of any third party.
You shall exclusively own all Customer Data. You hereby grant Nuplak a non-exclusive, nontransferable, sublicensable, royalty-free, worldwide right to handle Customer Data to: (i) provide You any Service, as defined herein and as set forth in any General Terms; (ii) generate aggregate data; (iii) sublicense solely to the extent necessary to in connection with the provision of the Services, including enabling other Partners to fulfill their obligations to Nuplak and to You, subject to any General Terms, if applicable.
- INDEMNIFICATION BY YOU.
You agree to indemnify and hold harmless Nuplak and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, and Partners, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs arising out of any breach by You of any undertaking, warranty, representation or agreement contained herein;
- DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE ORDERS MANUFACTURED BY NUPLAK PURSUANT TO AN ORDER SUBMITTED ON THIS WEBSITE AS WELL AS THE WEBSITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, AND ANY OTHER MATERIALS PROVIDED BY NUPLAK, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. NUPLAK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE, SERVICES AND ORDERS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NUPLAK DOES NOT WARRANT THAT ANY ORDER OR THE USE OF THE WEBSITE OR SERVICES WILL BE UN INTERRUPTED OR ERROR FREE OR THAT ANY ERROR OR DEFECTS WILL BE OR CAN BE CORRECTED. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS.
9.1 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NUPLAK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
9.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NUPLAK OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.3. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESS THROUGH THE WEBSITE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.4. YOU ACKNOWLEDGE AND AGREE THAT NUPLAK IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NUPLAK LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING FOR ANY ORDER MANUFACTURED BY A THIRD PARTY.
- LIMITATION OF LIABILITY
10.1. Disclaimer of Certain Damages. NUPLAK SHALL NOT IN ANY EVENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT NUPLAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE OR SERVICES; (3) ANY OTHER MATTER RELATED TO THE WEBSITE AND SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
10.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL NUPLAK BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY NUPLAK FROM YOU UNDER A GIVEN ORDER FOR ANY CLAIM RELATING TO A GIVEN ORDER.
10.3. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NUPLAK AND YOU.
- RELEASE OF LIABILITY.
You hereby release Nuplak and its affiliates, and their officers, directors, employees, agents, consultants, and Partners and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from Your order(s) excluding any material defects in any order(s) solely caused by the acts or omissions of Nuplak. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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”.
- TERM AND TERMINATION
12.1. Term. This Agreement commences on the date when You accept it (as described in the preamble above) and remains in full force and effect while You use the Services, unless terminated in accordance with the terms herein.
12.2. Termination of Services by You. Subject to the terms of Section 3.1, if You want to terminate the Services provided by Nuplak, You may do so by (a) notifying Nuplak at any time and (b) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to Nuplak’s address set forth below.
12.3. Termination of Services by Nuplak. Nuplak has the right to, immediately and without notice, suspend or terminate this Agreement or Your use of the Website and Services (with or without cause), including if Nuplak becomes aware of any possible violations by You of this Agreement. In the event Nuplak determines, in its sole discretion, that You have breached any portion of this Agreement, Nuplak reserves the right to: (i) warn You via email (to any email address you have provided to Nuplak) that You have violated this Agreement; (ii) delete Content provided by You or Your agent(s) to the Website; (iii) notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which Nuplak deems to be appropriate.
12.4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of Your password and all related information, files and Your Content associate with or inside Your Account. Nuplak will not have any liability whatsoever to You for any suspension or termination, including deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations and limitation of liability.
13.1 Electronic Communications. The communications between You and Nuplak use electronic means, whether You visit the Website or send Nuplak e-mails, or whether Nuplak posts notices on the Website or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Nuplak in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nuplak provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
13.3 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Nuplak’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Neither party shall be liable for any delay or failure to perform (excluding payment obligations) resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, pandemics, government-ordered shutdowns, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Website or Services, please contact us at: info@Nuplak.com. We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, we invite You to let us know for further investigation.
13.6 Limitations Period. YOU AND NUPLAK AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.7 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 13.7 (“Arbitration Agreement”) carefully. It is part of Your contract with Nuplak and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Nuplak that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to You and Nuplak, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Nuplak should be sent to: info@Nuplak.com. After the Notice is received, You and Nuplak will attempt to resolve the claim or dispute informally. If You and Nuplak do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by one to three, neutral arbitrators, at the discretion of Nuplak. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Los Angeles, California, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Time Limits. If You or Nuplak pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and Nuplak, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Nuplak.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between You and Nuplak in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND NUPLAK WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE BUYER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER BUYER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Agreement, neither You or Nuplak is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 13.6(n).
(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Nuplak.
(l) Small Claims Court. Notwithstanding the foregoing, either You or Nuplak may bring an individual action in small claims court.
(m) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(n) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for such purpose.
13.8 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
13.9 Independent Parties. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Nuplak and You.
You agree to take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Nuplak that is inconsistent with You not being an employee of Nuplak. You are not an agent of Nuplak and are not authorized, and must not represent to any third party that You are authorized, to make any commitment or otherwise act on behalf of Nuplak.
13.10 Notice. Where Nuplak requires that You provide an e-mail address, You are responsible for providing Nuplak with Your most current e-mail address. In the event that the last e-mail address You provided to Nuplak is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, Nuplak’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nuplak at the following address: email@example.com.
13.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.12 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.13 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Unless otherwise specifically agreed to by the parties, in the event of any conflict between the terms of this Agreement, the General Terms, or any order for Parts, the order of precedence is as follows: (i) this Agreement; (ii) the General Terms; and (iii) the order. Unless otherwise specifically agreed in a writing by the parties, the parties acknowledge that the pre-printed provisions on the reverse side of any quotation, order, acknowledgement or invoice will be deemed deleted and of no effect whatsoever.