These terms and conditions outline the rules and regulations for the use of EmpteeSpace Website.
By accessing this website we assume you accept these terms and conditions in full. Do not continue to use EmpteeSpace website if you do not accept all of the terms and conditions stated on this page.
1. USERS. You may simply browse the Site, or you may register with EMPTEESPACE and create an “Account”. You do not have to have an Account to order Products. You must, however, only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
2. ACCOUNTS. If you set up an Account, you are required to provide your name and email address and select a password (collectively, your “Account Information”), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms. In no event and under no circumstances will EMPTEESPACE be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of EMPTEESPACE under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity
a. When you place an Order on our Site for a specific Product(s), you will select your Products and provide your Payment information to EMPTEESPACE (our payment processing partner – PayPal) as set forth below. Our Payment Partner will process your payment at the time that you place your Order.
Acceptance of Your Order: Your placement of an Order through our Site is an offer to purchase the Product(s) and/or Services ordered and we may accept your Order by processing your payment and shipping the Final Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. No Order will be considered accepted by EMPTEESPACE until the Final Product(s) has been shipped to you. If some of the Products in your Order are temporarily out of stock, we will ship the available Products only and notify you of any Products that cannot be fulfilled. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your Order, without prior notice to you, to supply less than the quantity you ordered of any item. Your Order will be deemed accepted by EMPTEESPACE upon our delivery of the Final Products that you have ordered. We may require additional verifications or information before accepting any Order. All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when EMPTEESPACE provides the Product(s) to a common carrier.
Shipping of Orders: Any estimated shipping date provided by EMPTEESPACE is based on the date that EMPTEESPACE receives your order, Product availability and payment processing time, and does not include transit time. EMPTEESPACE only ships currently to addresses in the United States.
4. PAYMENT. To pay for an Order, you will need to provide EMPTEESPACE with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
5. PRICING AND PRODUCTS. We make efforts to display our Products and their colors as accurately as possible. Having said that, the displayed colors of the Products will depend upon your monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the Products. Products displayed may be out-of-stock or discontinued, and prices are subject to change. We cannot confirm the price of an item until you place an Order. In addition, in the event that we receive your order and we determine that the Product that you have ordered will not work for your Artwork, we will communicate with you to determine if you would like to change your Order to a different Product. In the event that you change your Order, the price of your Order will likely change. You authorize us to charge your payment method for any changes to your Order that you have approved. Despite our best efforts, a small number of the items on our Site may be mispriced. We are not responsible for typographical errors regarding price or any other matter. Unless otherwise noted on the Site at the time of your Order, all prices include shipping and handling. Unless otherwise set forth on the Site, the prices do not include sales taxes or any other taxes that we are required to add to your Order. Such taxes will be added to your total purchase price, if applicable.
6. PROMOTIONAL OFFERS. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point. Only one promotional code may be used per transaction.
EMPTEESPACE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND EMPTEESPACE’S SOLE LIABILITY, WILL BE THE REPLACEMENT OF SUCH GIFT CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
b. Third-Party Materials. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for EMPTEESPACE to monitor such materials and that you access these materials at your own risk.
a. Any materials submitted by you to EMPTEESPACE, including, without limitation, your Artwork, photographs, images, text, graphics and other materials (collectively, "User Submitted Materials") are subject to the following terms and conditions. You will retain ownership of such User Submitted Materials, and you grant EMPTEESPACE and our designees a limited, non-exclusive, royalty-free, right and license, to use, reproduce, distribute, create derivative works of and publicly display such User Submitted Materials (i) to enable you to use the Service to create, produce and purchase Products, (ii) in connection with the production or provision of any Product or Service you request, (iii) to show you how your User Submitted Materials would appear in our Products or Services, and (iv) to enable EMPTEESPACE to provide the Products and Services. For example, when you place an Order for a Product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for framing, packaging and shipment. With respect to materials submitted by an Artist to EMPTEESPACE, including, without limitation, Artwork, photographs, images, text, graphics and other materials (collectively, "Artist Submitted Materials", and together with the User Submitted Materials, the “Submitted Materials”), the Artist retains ownership of all of such Artist Submitted Materials. EMPTEESPACE agrees that it will work individually with an Artist to obtain any rights to use, reproduce , distribute and publicly display Artist Submitted Materials on the Site or in other EMPTEESPACE marketing materials and solely with the consent of the Artist.
9. RULES REGARDING INFORMATION AND OTHER CONTENT. When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call “Content.” You agree not to revise Content posted by others, and you represent and warrant that you will not use any Content in any manner or submit any Submitted Materials or other Content that:
10. General Rules of User Conduct. It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
License. Subject to your compliance with these Terms, EMPTEESPACE grants you a limited non-exclusive, non-transferable, non-sub-licensable, revocable license to download, install and use a copy of the Application on a mobile device that you own or control and to run such copy of the Application solely to access the Services for your own internal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an“Apple Sourced Application” ) you will only use the Apple Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
App Store. You acknowledge and agree that the availability of the Application and the Services obtained through the Application may be dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store” ). You acknowledge that these Terms are between you and EMPTEESPACE and not with the App Store. EMPTEESPACE, not the App Store, is solely responsible for the Services and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
II. In the event of any failure of the Apple Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Sourced Application. As between EMPTEESPACE and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EMPTEESPACE.
III. You and EMPTEESPACE acknowledge that, as between EMPTEESPACE and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Sourced Application or your possession and use of the Apple Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
IV. You and EMPTEESPACE acknowledge that, in the event of any third party claim that the Apple Sourced Application or your possession and use of that Apple Sourced Application infringes that third party’s intellectual property rights, as between EMPTEESPACE and Apple, EMPTEESPACE, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
V. You and EMPTEESPACE acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the Apple Sourced Application, and that, upon your acceptance of these Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apple Sourced Application against you as a third party beneficiary thereof.
VI. Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the Apple Sourced Application.
a. Open-Source Software. Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 11(a) and instead is separately licensed pursuant to the terms and conditions of their respective Open Source Software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
d. Third Party Services. We may enable you to link your use of the Application with a valid account on a third party content service such as Instagram (such service, a “Third-Party Service” and each such account, a “Third-Party Account”) by allowing EMPTEESPACE to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant EMPTEESPACE access to your Third-Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating EMPTEESPACE to pay any fees or making EMPTEESPACE subject to any usage limitations imposed by such third-party service providers. By granting EMPTEESPACE access to any Third-Party Accounts, you understand that EMPTEESPACE may access, make available and store (if applicable) any Content that you have provided to and/or stored in your Third-Party Account (“TPS Content”) so that it is available on and through the Application. Unless otherwise specified in the Terms, all TPS Content shall be considered to be Your Submitted Materials for all purposes of the Terms, including, without limitation, with respect to Section 8 above. You should note that a Third-Party Service may change or amend its guidelines and our access to it at any time, and we cannot guarantee that our Services will always include a connection to such Third Party Service.
12. FEEDBACK. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to Products, the Site or the Services (collectively“Feedback” ) you agree we may use the Feedback to modify our Products, Site and Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate written agreement with you that provides otherwise.
13. USE OF PRODUCTS BY EMPTEESPACE. From time to time, EMPTEESPACE may request your consent for EMPTEESPACE, its affiliates and partners to use photographs and other reproductions of Products ordered by you or provided to you, including Products that contain your Submitted Materials, and other materials supplied by you to EMPTEESPACE in EMPTEESPACE’s marketing materials, publicity and other materials and on the Site. In such event, EMPTEESPACE will seek your consent prior to such use. If you provide us with your consent, EMPTEESPACE, its affiliates, and partners will have a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of to use, reproduce, distribute, create derivative works of and publicly display, photographs and reproductions of such Products and other materials in all media existing now or created in the future to market our Products, Services and Site and for such other purposes as we may determine.
14. MODIFICATIONS TO AND DISCONTINUANCE OF THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgment of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
16. DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY EMPTEESPACE “WITH ALL FAULTS” AND ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. EMPTEESPACE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE CONTENT, PRODUCTS OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
17. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE PRODUCTS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES.
Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances WILL WE or our partners be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
19. Procedure for Making Claims of Copyright Infringement. While EMPTEESPACE is not obligated to review Your Submitted Materials for copyright infringement, EMPTEESPACE is committed to protecting copyrights and expect users of our Site and Applications to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Site or Applications infringes your copyright, you (or your agent) may send EMPTEESPACE a notice requesting that the material is removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow EMPTEESPACE to locate the material on our Site and Applications; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send EMPTEESPACE a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding the Site and Application should be sent to:
Attn: Copyright Agent
21. TRADEMARKS & COPYRIGHT NOTICE. The trademarks, logos and service marks displayed on the Site are the property of EMPTEESPACE or its licensors. Unless otherwise specified, all information and screens appearing on this Site including all materials, documents, services, site design, text, graphics, logos, images, and icons, as well as the selection and arrangement thereof, are the sole property of EMPTEESPACE, Copyright © 2016 EMPTEESPACE, Inc. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
22. INTERNATIONAL USERS. This Site can be accessed from countries around the world and may contain references to services and Products that are not available in your country. These references do not imply that EMPTEESPACE intends to announce such services or Products in your country. The Site and Services are controlled and offered by EMPTEESPACE from its facilities in the United States of America. EMPTEESPACE makes no representations that the Site or the Products are available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below.
a. The United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
b. Germany. Notwithstanding anything to the contrary in Section 17, EMPTEESPACE is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations
Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without EMPTEESPACE’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
c. Dispute Resolution.
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost-effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) 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 fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, EMPTEESPACE may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Delaware law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations, and statutes that are applicable to your use of the Site and/or Services.
I. Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. The arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
II. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
III. You and EMPTEESPACE must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR EMPTEESPACE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, EMPTEESPACE will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) EMPTEESPACE also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
IV. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. 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 will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 17 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Delaware law or United States federal law.
V. Notwithstanding the foregoing, either you or EMPTEESPACE may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York or Washington D.C. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Washington, D.C., in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Washington, D.C. for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
VI. With the exception of (iv)(1) and (2) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (iv)(1) or (2) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor EMPTEESPACE shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Washington, D.C. By using the Site and/or Services in any manner, you agree to the above arbitration provision
VII. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
d. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
e. Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English.
f. Export Control. You may not use, export, import, or transfer any Products or EMPTEESPACE materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Products or EMPTEESPACE materials, and any other applicable laws. In particular, but without limitation, the Products or EMPTEESPACE materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Products or EMPTEESPACE materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Products or EMPTEESPACE materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by EMPTEESPACE are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer EMPTEESPACE products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
g. Release. You hereby release the EMPTEESPACE Parties 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 use of the Site and/or Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Site and/or Services. 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.”
h. Notice. Where EMPTEESPACE requires that you provide an e-mail address, you are responsible for providing EMPTEESPACE with your most current e-mail address. In the event that the last e-mail address you provided to EMPTEESPACE is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, EMPTEESPACE’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to EMPTEESPACE at the following address: support@EMPTEESPACE.com. Such notice shall be deemed given when received by EMPTEESPACE by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
i. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
j. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms 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.
k. Entire Agreement. The Terms 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.