Terms of Use
The website located athttps://patched.codes (the “Site”)is a copyrighted work belonging to Patched Codes Inc. (“Company”, “us”, “our”, and “we”). Certain features ofthe Site may be subject to additional guidelines, terms, or rules, which willbe posted on the Site in connection with such features. All such additional terms, guidelines, andrules are incorporated by reference into these Terms.
TheseTerms of Use (these “Terms”) set forth the legally binding terms andconditions that govern your use of the Site. By accessing or using the Site, you are accepting these Terms (on behalfof yourself or the entity that you represent), and you represent and warrantthat you have the right, authority, and capacity to enter into these Terms (onbehalf of yourself or the entity that you represent). you may not access or use the Site or acceptthe Terms if you are not at least 18 years old. If you do not agree with all of the provisions of these Terms, do notaccess and/or use the Site.
PLEASEBE AWARE THAT SECTION 8.2 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOUAND COMPANY. AMONG OTHER THINGS, SECTION 8.2 INCLUDES ANAGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALLDISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION8.2 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 8.2 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEKRELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER INANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT ORCLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTESOR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1. Accounts
1.1 AccountCreation. In order to use certainfeatures of the Site, you must register for an account (“Account”) and provide certain information about yourself asprompted by the account registration form. You represent and warrant that: (a) all required registrationinformation you submit is truthful and accurate; (b) you will maintain theaccuracy of such information. You may delete yourAccount at any time, for any reason, by following the instructions on theSite. Company may suspend or terminateyour Account in accordance with Section 7.
1.2 AccountResponsibilities. You areresponsible for maintaining the confidentiality of your Account logininformation and are fully responsible for all activities that occur under yourAccount. You agree to immediately notifyCompany of any unauthorized use, or suspected unauthorized use of your Accountor any other breach of security. Companycannot and will not be liable for any loss or damage arising from your failureto comply with the above requirements.
2. Accessto the Site
2.1 License. Subject to these Terms, Company grants you anon-transferable, non-exclusive, revocable, limited license to use and accessthe Site solely for your own personal, noncommercial use.
2.2 CertainRestrictions. The rights granted toyou in these Terms are subject to the following restrictions: (a) you shall notlicense, sell, rent, lease, transfer, assign, distribute, host, or otherwisecommercially exploit the Site, whether in whole or in part, or any content displayedon the Site; (b) you shall not modify, make derivative works of, disassemble,reverse compile or reverse engineer any part of the Site; (c) you shall notaccess the Site in order to build a similar or competitive website, product, orservice; and (d) except as expressly stated herein, no part of the Site may becopied, reproduced, distributed, republished, downloaded, displayed, posted ortransmitted in any form or by any means. Unless otherwise indicated, any future release, update, or otheraddition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary noticeson the Site (or on any content displayed on the Site) must be retained on allcopies thereof.
2.3 Modification. Company reserves the right, at any time, tomodify, suspend, or discontinue the Site (in whole or in part) with or withoutnotice to you. You agree that Companywill not be liable to you or to any third party for any modification,suspension, or discontinuation of the Site or any part thereof.
2.4 No Support or Maintenance. Youacknowledge and agree that Company will have no obligation to provide you withany support or maintenance in connection with the Site.
2.5 Ownership. You acknowledge that all theintellectual property rights, including copyrights, patents, trade marks, andtrade secrets, in the Site and its content are owned by Company or Company’ssuppliers. Neither these Terms (nor youraccess to the Site) transfers to you or any third party any rights, title orinterest in or to such intellectual property rights, except for the limitedaccess rights expressly set forth in Section 2.1.Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted underthese Terms.
2.6 Feedback. If you provide Company with any feedback orsuggestions regarding the Site (“Feedback”),you hereby assign to Company all rights in such Feedback and agree that Companyshall have the right to use and fully exploit such Feedback and relatedinformation in any manner it deems appropriate. Company will treat any Feedback you provide to Company asnon-confidential and non-proprietary. You agree that you will not submit to Company any information or ideasthat you consider to be confidential or proprietary.
3. Indemnification. You agree to indemnify and hold Company (and its officers,employees, and agents) harmless, including costs and attorneys’ fees, from anyclaim or demand made by any third party due to or arising out of (a) your useof the Site, (b) your violation of these Terms or (c) your violation ofapplicable laws or regulations. Companyreserves the right, at your expense, to assume the exclusive defense andcontrol of any matter for which you are required to indemnify us, and you agreeto cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent ofCompany. Company will use reasonableefforts to notify you of any such claim, action or proceeding upon becomingaware of it.
4. Third-PartyLinks & Ads; Other Users
4.1 Third-PartyLinks & Ads. The Site maycontain links to third-party websites and services, and/or displayadvertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are notunder the control of Company, and Company is not responsible for anyThird-Party Links & Ads. Companyprovides access to these Third-Party Links & Ads only as a convenience toyou, and does not review, approve, monitor, endorse, warrant, or make anyrepresentations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads atyour own risk, and should apply a suitable level of caution and discretion indoing so. When you click on any of the Third-Party Links & Ads, theapplicable third party’s terms and policies apply, including the third party’sprivacy and data gathering practices. You should make whatever investigation you feel necessary or appropriatebefore proceeding with any transaction in connection with such Third-PartyLinks & Ads.
4.2 OtherUsers. Your interactions with otherSite users are solely between you and such users. You agree that Company will not beresponsible for any loss or damage incurred as the result of any suchinteractions. If there is a disputebetween you and any Site user, we are under no obligation to become involved.
4.3 Release. You hereby release and forever dischargeCompany (and our officers, employees, agents, successors, and assigns) from,and hereby waive and relinquish, each and every past, present and futuredispute, claim, controversy, demand, right, obligation, liability, action andcause of action of every kind and nature (including personal injuries, death,and property damage), that has arisen or arises directly or indirectly out of,or that relates directly or indirectly to, the Site (including any interactionswith, or act or omission of, other Site users or any Third-Party Links &Ads). IF YOU ARE A CALIFORNIA RESIDENT,YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THEFOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUSTHAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASEDPARTY.”
5. Disclaimers
THE SITE IS PROVIDED ON AN“AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLYDISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS,IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT,ACCURACY, OR NON-INFRINGEMENT. WE (ANDOUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILLBE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILLBE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL,OR SAFE. IF APPLICABLE LAW REQUIRES ANYWARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED INDURATION TO 90 DAYS FROM THE DATE OF FIRST USE.
SOMEJURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVEEXCLUSION MAY NOT APPLY TO YOU. SOMEJURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6. Limitation onLiability
TOTHE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OURSUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA,COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL,EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TOTHESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF COMPANY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUROWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TOYOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TOTHE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARYCONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATEDTO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THEACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS. THEEXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NOLIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OFLIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OREXCLUSION MAY NOT APPLY TO YOU.
7. Term andTermination. Subject to thisSection, these Terms will remain in full force and effect while you use theSite. We may suspend or terminate your rights to use theSite (including your Account) at any time for any reason at our solediscretion, including for anyuse of the Site in violation of these Terms. Upon termination of your rights under theseTerms, your Account and right to access and use the Site will terminateimmediately. Company will not have anyliability whatsoever to you for any termination of your rights under theseTerms, including for termination of your Account. Even after your rights under these Terms areterminated, the following provisions of these Terms will remain in effect:Sections 2.2 through 2.6 and Sections 3 through8.
8. General
8.1 Changes. These Terms are subject to occasionalrevision, and if we make any substantial changes, we may notify you by sendingyou an e-mail to the last e-mail address you provided to us (if any), and/or byprominently posting notice of the changes on our Site. You are responsible for providing us withyour most current e-mail address. In theevent that the last e-mail address that you have provided us is not valid, orfor any reason is not capable of delivering to you the notice described above,our dispatch of the e-mail containing such notice will nonetheless constituteeffective notice of the changes described in the notice. Continued use of our Site following notice ofsuch changes shall indicate your acknowledgement of such changes and agreementto be bound by the terms and conditions of such changes.
8.2 DisputeResolution. Please read the following arbitration agreement in thisSection (the “Arbitration Agreement”)carefully. It requires you to arbitrate disputes with Company, its parentcompanies, subsidiaries, affiliates, successors and assigns and all of theirrespective officers, directors, employees, agents, and representatives(collectively, the “Company Parties”) and limits the manner in which youcan seek relief from the Company Parties.
(a) Applicabilityof Arbitration Agreement. You agree that any dispute between you andany of the Company Parties relating in any way to the Site, the servicesoffered on the Site (the “Services”) or these Terms will be resolved bybinding arbitration, rather than in court, except that (1) you and the CompanyParties may assert individualized claims in small claims court if the claimsqualify, remain in such court and advance solely on an individual, non-class basis;and (2) you or the Company Parties may seek equitable relief in court forinfringement or other misuse of intellectual property rights (such astrademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreementshall survive the expiration or termination of these Terms and shall apply,without limitation, to all claims that arose or were assertedbefore you agreed to these Terms (in accordance with the preamble) or any priorversion of these Terms. ThisArbitration Agreement does not preclude you from bringing issues to theattention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the CompanyParties on your behalf. For purposes of this ArbitrationAgreement, “Dispute” will alsoinclude disputes that arose or involve facts occurring before the existence ofthis or any prior versions of the Agreement as well as claims that may ariseafter the termination of these Terms.
(b) InformalDispute Resolution. There might be instances when a Dispute arises betweenyou and Company. If that occurs, Company is committed to working with you toreach a reasonable resolution. You and Company agree that good faith informalefforts to resolve Disputes can result in a prompt, low‐cost and mutuallybeneficial outcome. You and Company therefore agree that before either partycommences arbitration against the other (or initiates an action in small claimscourt if a party so elects), we will personally meet and confer telephonicallyor via videoconference, in a good faith effort to resolve informally anyDispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented bycounsel, your counsel may participate in the conference, but you will alsoparticipate in the conference.
The party initiating a Disputemust give notice to the other party in writing of its intent to initiate anInformal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the otherparty receives such Notice, unless an extension is mutually agreed upon by theparties. Notice to Company that you intend to initiate an Informal DisputeResolution Conference should be sent by email to: legal@patchedcodes.com,or by regular mail to 1111bSouth Governors Avenue, Dover,Delaware 19904. The Notice must include:(1) your name, telephone number, mailing address, e‐mail address associatedwith your account (if you have one); (2) the name, telephone number, mailingaddress and e‐mail address of your counsel, if any; and (3) a description of yourDispute.
The Informal Dispute ResolutionConference shall be individualized such that a separate conference must be heldeach time either party initiates a Dispute, even if the same law firm or groupof law firms represents multiple users in similar cases, unless all partiesagree; multiple individuals initiating a Dispute cannot participate in the sameInformal Dispute Resolution Conference unless all parties agree. In the timebetween a party receiving the Notice and the Informal Dispute ResolutionConference, nothing in this Arbitration Agreement shall prohibit the partiesfrom engaging in informal communications to resolve the initiating party’sDispute. Engaging in the Informal Dispute Resolution Conference is a conditionprecedent and requirement that must be fulfilled before commencing arbitration.The statute of limitations and any filing fee deadlines shall be tolled whilethe parties engage in the Informal Dispute Resolution Conference processrequired by this section.
(c) Arbitration Rules and Forum. These Terms evidence a transactioninvolving interstate commerce; and notwithstanding any other provision hereinwith respect to the applicable substantive law, the Federal Arbitration Act, 9U.S.C. § 1 et seq., will govern the interpretation and enforcement of thisArbitration Agreement and any arbitration proceedings. If the Informal DisputeResolution Process described above does not resolve satisfactorily within 60days after receipt of your Notice, you and Company agree that either partyshall have the right to finally resolve the Dispute through bindingarbitration. The Federal Arbitration Act governs the interpretation andenforcement of this Arbitration Agreement. The arbitration will be conducted byJAMS, an established alternative dispute resolution provider. Disputesinvolving claims and counterclaims with an amount in controversy under$250,000, not inclusive of attorneys’ fees and interest, shall be subject toJAMS’ most current version of the Streamlined Arbitration Rules and proceduresavailable at http://www.jamsadr.com/rules-streamlined-arbitration/;all other claims shall be subject to JAMS’s most current version of theComprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.JAMS’s rules are also available at www.jamsadr.com or bycalling JAMS at 800-352-5267. A party who wishes to initiate arbitration mustprovide the other party with a request for arbitration (the “Request”). The Request must include:(1) the name, telephone number, mailing address, e‐mail address of the partyseeking arbitration and the account username (if applicable) as well as theemail address associated with any applicable account; (2) a statement of thelegal claims being asserted and the factual bases of those claims; (3) adescription of the remedy sought and an accurate, good‐faith calculation of theamount in controversy in United States Dollars; (4) a statement certifyingcompletion of the Informal Dispute Resolution process as described above; and(5) evidence that the requesting party has paid any necessary filing fees inconnection with such arbitration.
If theparty requesting arbitration is represented by counsel, the Request shall alsoinclude counsel’s name, telephone number, mailing address, and email address.Such counsel must also sign the Request. By signing the Request, counselcertifies to the best of counsel’s knowledge, information, and belief, formedafter an inquiry reasonable under the circumstances, that: (1) the Request isnot being presented for any improper purpose, such as to harass, causeunnecessary delay, or needlessly increase the cost of dispute resolution; (2)the claims, defenses and other legal contentions are warranted by existing lawor by a nonfrivolous argument for extending, modifying, or reversing existinglaw or for establishing new law; and (3) the factual and damages contentionshave evidentiary support or, if specifically so identified, will likely haveevidentiary support after a reasonable opportunity for further investigation ordiscovery.
Unless you and Company otherwiseagree, or the Batch Arbitration process discussed in Subsection 8.2(h) istriggered, the arbitration will be conducted in the county where you reside.Subject to the JAMS Rules, the arbitrator may direct a limited and reasonableexchange of information between the parties, consistent with the expeditednature of the arbitration. If the JAMS is not available to arbitrate, theparties will select an alternative arbitral forum. Your responsibility to payany JAMS fees and costs will be solely as set forth in the applicable JAMSRules.
You and Company agree that allmaterials and documents exchanged during the arbitration proceedings shall bekept confidential and shall not be shared with anyone except the parties’attorneys, accountants, or business advisors, and then subject to the conditionthat they agree to keep all materials and documents exchanged during thearbitration proceedings confidential.
(d) Authority of Arbitrator.The arbitrator shall have exclusive authority to resolve all disputes subjectto arbitration hereunder including, without limitation, any dispute related tothe interpretation, applicability, enforceability or formation of thisArbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) allDisputes arising out of or relating to the subsection entitled “Waiver of Classor Other Non-Individualized Relief,” including any claim that all or part ofthe subsection entitled “Waiver of Class or Other Non-Individualized Relief” isunenforceable, illegal, void or voidable, or that such subsection entitled“Waiver of Class or Other Non-Individualized Relief” has been breached, shallbe decided by a court of competent jurisdiction and not by an arbitrator; (2)except as expressly contemplated in the subsection entitled “BatchArbitration,” all Disputes about the payment of arbitration fees shall bedecided only by a court of competent jurisdiction and not by an arbitrator; (3)all Disputes about whether either party has satisfied any condition precedentto arbitration shall be decided only by a court of competent jurisdiction andnot by an arbitrator; and (4) all Disputes about which version of theArbitration Agreement applies shall be decided only by a court of competentjurisdiction and not by an arbitrator. The arbitrationproceeding will not be consolidated with any other matters or joined with anyother cases or parties, except as expressly provided in the subsection entitled“Batch Arbitration.” The arbitrator shall have the authority to grantmotions dispositive of all or part of any claim or dispute. The arbitratorshall have the authority to award monetary damages and to grant anynon-monetary remedy or relief available to an individual party under applicablelaw, the arbitral forum’s rules, and these Terms (including the ArbitrationAgreement). The arbitrator shall issue a written award and statement ofdecision describing the essential findings and conclusions on which any award(or decision not to render an award) is based, including the calculation of anydamages awarded. The arbitrator shall follow the applicable law. The award of the arbitrator isfinal and binding upon you and us. Judgment on the arbitration award may beentered in any court having jurisdiction.
(e) Waiverof Jury Trial. EXCEPT ASSPECIFIED in section 8.2(a) YOU AND THE COMPANY PARTIES HEREBY WAIVE ANYCONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL INFRONT OF A JUDGE OR A JURY. You and the Company Parties are instead electingthat all covered claims and disputes shall be resolved exclusively byarbitration under this Arbitration Agreement, except as specified in Section 8.2(a) above. Anarbitrator can award on an individual basis the same damages and relief as acourt and must follow these Terms as a court would. However, there is no judgeor jury in arbitration, and court review of an arbitration award is subject tovery limited review.
(f) Waiver of Class or OtherNon-Individualized Relief. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 8.2(h) EACH OF US MAY BRINGCLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS,REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TOHAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON ACLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEFIS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BEARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject tothis Arbitration Agreement, the arbitrator may award declaratory or injunctiverelief only in favor of the individual party seeking relief and only to theextent necessary to provide relief warranted by the party’s individual claim.Nothing in this paragraph is intended to, nor shall it, affect the terms andconditions under the Subsection 8.2(h) entitled “Batch Arbitration.” Notwithstanding anything tothe contrary in this Arbitration Agreement, if a court decides by means of afinal decision, not subject to any further appeal or recourse, that thelimitations of this subsection, “Waiver of Class or Other Non-IndividualizedRelief,” are invalid or unenforceable as to a particular claim or request forrelief (such as a request for public injunctive relief), you and Company agreethat that particular claim or request for relief (and only that particularclaim or request for relief) shall be severed from the arbitration and may belitigated in the state or federal courts located in the State of Delaware. Allother Disputes shall be arbitrated or litigated in small claims court. Thissubsection does not prevent you or Company from participating in a class-widesettlement of claims.
(g) Attorneys’Fees and Costs. The parties shall bear their own attorneys’ fees and costsin arbitration unless the arbitrator finds that either the substance of theDispute or the relief sought in the Request was frivolous or was brought for animproper purpose (as measured by the standards set forth in Federal Rule ofCivil Procedure 11(b)). If you or Company need to invoke the authority of acourt of competent jurisdiction to compel arbitration, then the party thatobtains an order compelling arbitration in such action shall have the right tocollect from the other party its reasonable costs, necessary disbursements, andreasonable attorneys’ fees incurred in securing an order compellingarbitration. The prevailing party in any court action relating to whethereither party has satisfied any condition precedent to arbitration, includingthe Informal Dispute Resolution Process, is entitled to recover theirreasonable costs, necessary disbursements, and reasonable attorneys’ fees andcosts.
(h) BatchArbitration. To increase the efficiency of administration and resolution ofarbitrations, you and Company agree that in the event that there are 100 ormore individual Requests of a substantially similar nature filed againstCompany by or with the assistance of the same law firm, group of law firms, ororganizations, within a 30 day period (or as soon as possible thereafter), theJAMS shall (1) administer the arbitration demands in batches of 100 Requestsper batch (plus, to the extent there are less than 100 Requests left over afterthe batching described above, a final batch consisting of the remainingRequests); (2) appoint one arbitrator for each batch; and (3) provide for theresolution of each batch as a single consolidated arbitration with one set offiling and administrative fees due per side per batch, one procedural calendar,one hearing (if any) in a place to be determined by the arbitrator, and onefinal award (“Batch Arbitration”).
All parties agree that Requestsare of a “substantially similar nature” if they arise out of or relate to thesame event or factual scenario and raise the same or similar legal issues andseek the same or similar relief. To the extent the parties disagree on theapplication of the Batch Arbitration process, the disagreeing party shalladvise the JAMS, and the JAMS shall appoint a sole standing arbitrator todetermine the applicability of the Batch Arbitration process (“AdministrativeArbitrator”). Inan effort to expedite resolution of any such dispute by the AdministrativeArbitrator, the parties agree the Administrative Arbitrator may set forth suchprocedures as are necessary to resolve any disputes promptly. TheAdministrative Arbitrator’s fees shall be paid by Company.
You and Company agree tocooperate in good faith with the JAMS to implement the Batch Arbitrationprocess including the payment of single filing and administrative fees forbatches of Requests, as well as any steps to minimize the time and costs ofarbitration, which may include: (1) the appointment of a discovery specialmaster to assist the arbitrator in the resolution of discovery disputes; and(2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provisionshall in no way be interpreted as authorizing a class, collective and/or massarbitration or action of any kind, or arbitration involving joint orconsolidated claims under any circumstances, except as expressly set forth inthis provision.
(i) 30-Day Right to Opt Out. You have the right to opt out of theprovisions of this Arbitration Agreement by sending a timely written notice ofyour decision to opt out to the following address: 1111b South Governors Avenue,Dover, Delaware 19904, or email to legal@patchedcodes.com, within 30 days afterfirst becoming subject to this Arbitration Agreement. Your notice must includeyour name and address and a clear statement that you want to opt out of thisArbitration Agreement. If you opt out of this Arbitration Agreement, all otherparts of these Terms will continue to apply to you. Opting out of thisArbitration Agreement has no effect on any other arbitration agreements thatyou may currently have with us, or may enter into in the future with us.
(j) Invalidity,Expiration. Except as provided in the subsection entitled “Waiver of Classor Other Non-Individualized Relief”, if any part or parts of this ArbitrationAgreement are found under the law to be invalid or unenforceable, then suchspecific part or parts shall be of no force and effect and shall be severed andthe remainder of the Arbitration Agreement shall continue in full force andeffect. You further agree that any Dispute that you have with Company asdetailed in this Arbitration Agreement must be initiated via arbitration withinthe applicable statute of limitation for that claim or controversy, or it willbe forever time barred. Likewise, you agree that all applicable statutes oflimitation will apply to such arbitration in the same manner as those statutesof limitation would apply in the applicable court of competent jurisdiction.
(k) Modification. Notwithstanding any provision in theseTerms to the contrary, we agree that if Company makes any future materialchange to this Arbitration Agreement, you may reject that change within 30 daysof such change becoming effective by writing Company at the following address: 1111bSouth Governors Avenue, Dover, Delaware 19904, or email tolegal@patchedcodes.com. Unless you reject the changewithin 30 days of such change becoming effective by writing to Company inaccordance with the foregoing, your continued use of the Site and/or Services,including the acceptance of products and services offered on the Site followingthe posting of changes to this Arbitration Agreement constitutes youracceptance of any such changes. Changes to this Arbitration Agreement do notprovide you with a new opportunity to opt out of the Arbitration Agreement ifyou have previously agreed to a version of these Terms and did not validly optout of arbitration. If you reject any change or update to this ArbitrationAgreement, and you were bound by an existing agreement to arbitrate Disputesarising out of or relating in any way to your access to or use of the Servicesor of the Site, any communications you receive, any products sold ordistributed through the Site, the Services, or these Terms, the provisions ofthis Arbitration Agreement as of the date you first accepted these Terms (oraccepted any subsequent changes to these Terms) remain in full force andeffect. Company will continue to honor any valid opt outs of the Arbitration Agreementthat you made to a prior version of these Terms.
8.3 Export. The Site may be subject to U.S. export control laws and may be subjectto export or import regulations in other countries. You agree not to export,reexport, or transfer, directly or indirectly, any U.S. technical data acquiredfrom Company, or any products utilizing such data, in violation of the UnitedStates export laws or regulations.
8.4 Disclosures. Companyis located at the address in Section 8.8. If you are a California resident, youmay report complaints to the Complaint Assistance Unit of the Division ofConsumer Product of the California Department of Consumer Affairs by contactingthem in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800)952-5210.
8.5 Electronic Communications. Thecommunications between you and Company use electronic means, whether you usethe Site or send us emails, or whether Company posts notices on the Site orcommunicates with you via email. For contractual purposes, you (a) consent toreceive communications from Company in an electronic form; and (b) agree thatall terms and conditions, agreements, notices, disclosures, and othercommunications that Company provides to you electronically satisfy any legalrequirement that such communications would satisfy if it were be in a hardcopywriting. The foregoing does not affect your non-waivable rights.
8.6 Entire Terms. These Terms constitute the entire agreementbetween you and us regarding the use of the Site. Our failure to exercise orenforce any right or provision of these Terms shall not operate as a waiver ofsuch right or provision. The section titles in these Terms are for convenienceonly and have no legal or contractual effect. The word “including” means“including without limitation”. If anyprovision of these Terms is, for any reason, held to be invalid or unenforceable,the other provisions of these Terms will be unimpaired and the invalid orunenforceable provision will be deemed modified so that it is valid andenforceable to the maximum extent permitted by law. Your relationship to Company is that of anindependent contractor, and neither party is an agent or partner of theother. These Terms, and your rights andobligations herein, may not be assigned, subcontracted, delegated, or otherwisetransferred by you without Company’s prior written consent, and any attemptedassignment, subcontract, delegation, or transfer in violation of the foregoingwill be null and void. Company mayfreely assign these Terms. The terms andconditions set forth in these Terms shall be binding upon assignees.
8.7 Copyright/Trademark Information. Copyright© 20___ Patched Codes Inc. All rightsreserved. All trademarks, logos and service marks (“Marks”)displayed on the Site are our property or the property of other third parties.You are not permitted to use these Marks without our prior written consent orthe consent of such third party which may own the Marks.
8.8 ContactInformation:
Address:
1111b SouthGovernors Avenue
Dover, Delaware19904
Telephone: +12027739424
Email: legal@patchedcodes.com
