Last updated on Feb 14, 2013
PLEASE NOTE: This Agreement contains a Dispute Resolution And Arbitration Section (Section 10), including Class Action Waiver that affects your rights under these Terms and with respect to disputes you may have with BioLite. You may opt out of the binding individual arbitration and class action waiver as provided below.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – CHANGES TO TERMS
BioLite may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you. BioLite also reserves the right to modify these Terms at any time. When we make changes to these Terms, we will revise the “Last updated” date at the top of these Terms and we will notify you of the changes by prominently posting a notice of such changes on the Site. We encourage you to review these Terms whenever you visit the Site. By continuing to access and use the Site after any such changes have been posted, you are indicating your acceptance of such changes, even if you have not reviewed the changes.
1.2 – PERSONAL INFORMATION/PRIVACY
2 – ELIGIBILITY; USE OF THE SITE; PASSWORD RESTRICTED AREAS OF THE SITE; GENERAL USE RESTRICTIONS
2.1 - ELIGIBILITY
By using the Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into these Terms. Further, you represent, acknowledge and agree that: (a) all account registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of the Site does not violate any applicable laws, rules or regulations. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless BioLite if your child breaches or disaffirms any term or condition of these Terms.
BioLite may terminate these Terms and your use of the Site without notice if BioLite, in its sole discretion, believes that you are either (i) between the ages of 13 and 18 and using the Site without the permission of your parent or (ii) under the age of 13 using the Site and the Services on the Site.
2.2 – USE OF THE SITE; PASSWORD RESTRICTED AREAS OF THE SITE
You need not register with BioLite to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site, including to place an order for the purchase of Products on the Site, you must register with BioLite for an account.
You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your Password. You agree not to share your Password, let anyone else access your Password or do anything else that might jeopardize the security of your Password. You agree to notify BioLite if your Password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your Password or if you know of any other breach of security in relation to this Site.
By using this Site, you represent and warrant that all the information that you provide when registering for an account and otherwise through the Site is accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting BioLite using the contact information at the end of these Terms requesting that we make the change.
2.3 – GENERAL USE RESTRICTIONS
BioLite provides content through this Site and information and materials that are shipped with the Products. Certain content, information, documents, products and services provided on and through this Site and/or with the Products, including logos, graphics and images that are not Submissions (as defined below) (collectively, "the Materials") are provided to you by BioLite and are the copyrighted and/or trademarked work of BioLite or BioLite’s contributors.
BioLite grants you a limited, personal, non-exclusive and non-transferable license to use and to display and to make one copy of the Materials and to use the services and this Site solely for your personal use. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of these limited licenses, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site or any Materials.
All Materials and services provided on or through the Site are provided by BioLite in the English language only. You agree that you have read and understand these Terms and the information and materials that are shipped with the materials with the products that are provided in the English language.
2.4 - BLOCKING OF IP ADDRESSES
In order to protect the integrity of the services, BioLite reserves the right at any time in its sole discretion to block visitors from certain IP addresses from accessing the Site.
3 – TERMS OF SALE; REFUND POLICY; ELECTRONIC COMMUNICATIONS
3.1 – SALES OF PRODUCTS TO END USERS ONLY
BioLite sells Products on the Site to end-user customers only for their own personal, non-commercial use. You may not purchase any Products for further distribution or resale or for any other commercial or business purpose or share them with any other person.
3.2 – PRICING
The price that we will charge you for the Product will be the price as posted on the Site on the date you submit your order through the Site. BioLite reserves the right to change prices for Products at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
You agree to pay all fees or charges to your account based on BioLite’s fees and billing terms in effect as shown on the pricing and payment page located at : shop.biolitestove.com. You will be responsible for paying any and all applicable sales and use taxes for your purchase of the Product based on the address that you provide as the shipping address with your order, and you authorize BioLite or the third party payment processing company that we engage to charge your credit card or debit card for all such taxes.
If you do not pay on time or if your credit card or debit card on file in your account cannot be charged for any reason, BioLite reserves the right to either suspend or terminate your access to your account and terminate these Terms. You are expressly agreeing that BioLite or the third party payment processing company that we engage is permitted to bill you for the applicable fees, any applicable taxes and any other charges that you may incur in connection with your use of this Site and purchase of Products from the Site and the fees will be billed to your credit card or debit card on file in your account on the Site. If you have a balance due on any account, you agree that BioLite may charge such unpaid fees to your credit card or debit card on file or otherwise bill you for such unpaid fees.
3.3 - PAYMENT METHODS
BioLite accepts credit card and debit card payments only. We will charge your credit card at the time each applicable Product is shipped. When the Product is not available to ship for more than 20 days, the product will be in back order. At that time, BioLite will announce the expected ship date on the BioLite shopping site. If you choose to place an order while a product is in back order, BioLite will charge your credit card at the time the order is placed. This will ensure that your order will ship as soon as the product is back in stock. If during this period you decide to cancel your order, you can do so for a full refund. You can also wait to place an order when the Product is back in stock on the shopping page, however, if there is considerable demand during a back order period supplies may be limited. All orders will be processed in the order they are received at BioLite. All sales and payments will be in US Dollars.
3.4 – PRODUCT DELIVERY AND ACCEPTANCE
We or the third party fulfillment company that we engage, as applicable, will ship the Products that you purchase as soon as possible after the applicable Product becomes available for shipment and provide an e-mail notice to you when the Product has been shipped. The cost of shipping the Product is not included in the purchase price of the Product and will be an additional charge. All Products in any form will be deemed accepted upon delivery.
3.5 – REFUND POLICY
You may review information about BioLite’s refund policy on the Site at the following URL: biolitestove.com/refund.html.
3.6 – ELECTRONIC COMMUNICATIONS
By using the Site and/or the services provided on or through the Site, you consent to receiving electronic communications from BioLite. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or services provided on or through the Site. These electronic communications are part of your relationship with BioLite. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
4. – SUBMISSIONS; UNAUTHORIZED ACTIVITIES
4.1 – SUBMISSIONS
You further agree that you will not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission that you make.
You represent and warrant that: (i) you own all Submissions posted by you on or through this Site or otherwise have the right to grant the ownership to BioLite set forth in this section, and (ii) the posting of your Submissions on or through this Site does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require BioLite to monitor, police or remove any Submissions or other information submitted by you or any other user.
4.2 – UNAUTHORIZED ACTIVITIES
When using this Site and/or the services on the Site, you agree not to, without limitation:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
This list of prohibitions provides examples and is not complete or exclusive. BioLite reserves the right to (a) terminate your access to your account, your ability to post to this Site and (b) refuse, delete or remove any Submissions, with or without cause and with or without notice, for any reason or no reason, or for any action that BioLite determines is inappropriate or disruptive to this Site or to any other user of this Site and/or services on the Site. BioLite may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at BioLite’s discretion, BioLite will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
You agree to indemnify and hold BioLite and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) BioLite or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
5. – LINKS TO THIRD PARTY SITES
6. – PROPRIETARY RIGHTS
BioLite is a trademark of BioLite in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of BioLite, Copyright © 2013 BioLite, LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited 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 or license.
7. – COPYRIGHT AND TRADEMARK INFRINGEMENTS
BioLite respects the intellectual property rights of others, and we ask you to do the same. BioLite may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide BioLite’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit BioLite to locate the material.
- Information reasonably sufficient to permit BioLite to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
BioLite’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
By mail: Legal, P.O. Box 21905 Brooklyn NY 11201
By phone: 909-257-8683
By e mail: firstname.lastname@example.org
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
8. – LIMITED PRODUCT WARRANTY; DISCLAIMER OF WARRANTIES
8.1 – LIMITED PRODUCT WARRANTY
Please refer to the terms and conditions of the limited product warranty provided with the Product you purchased.
You may also review information about BioLite’s limited product warranty at BioLite’s website located at: biolitestove.com/warranty.html.
8.2 – DISCLAIMER OF WARRANTIES
THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. BIOLITE, ON BEHALF OF ITSELF AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “BIOLITE PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE OR free from viruses, interference, hacking, loss, or corruption; (C) DOES NOT REPRESENT OR WARRANT THAT SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS AND SUBMISSIONS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND BIOLITE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BIOLITE OR ANY PERSON ON BEHALF OF BIOLITE SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 8.2 SHALL EXCLUDE OR LIMIT THE BIOLITE PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
9 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY BIOLITE PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SITE, ANY SERVICES PROVIDED ON OR THROUGH THE SITE, MATERIALS OR SUBMISSIONS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A BIOLITE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A BIOLITE PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS OR SUBMISSIONS, THE RELEVANT BIOLITE PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT YOU PAID BIOLITE FOR THE APPLICABLE PRODUCT.
NOTHING IN THIS SECTION 9 SHALL EXCLUDE OR LIMIT ANY BIOLITE PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH BIOLITE PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
10. – Disputes and Arbitration; Class Action Waiver; JURY WAIVER
10.1 – DISPUTES AND ARBITRATION
This Section (Section 10) facilitates the prompt and efficient resolution of any disputes that may arise between you and BioLite. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Section (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Section carefully. It provides that all Disputes (as defined below) between you and BioLite shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this Agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Section, “BioLite” means BioLite and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and BioLite regarding any aspect of your relationship with BioLite, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS SECTION.
Notwithstanding any Section in this Agreement to the contrary, we agree that if BioLite makes any change to this Section (other than a change to the Notice Address), you may reject any such change and require BioLite to adhere to the language in this Section if a Dispute between us arises.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give BioLite an opportunity to resolve the Dispute. You must commence this process by mailing written notification to BioLite, Attn: Jonathan Cedar, P.O. Box 21905, Brooklyn NY 11201. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If BioLite does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or BioLite may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to BioLite, Attn: Jonathan Cedar, P.O. Box 21905, Brooklyn NY 11201. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with BioLite through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with BioLite. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures. If this Section applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or BioLite may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Section.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Section governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Website and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or BioLite may initiate arbitration in either New York, New York or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, APIASF may transfer the arbitration to New York, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs. BioLite will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with BioLite as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
10.2 – CLASS ACTION WAIVER
Except as otherwise provided in this Section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and BioLite specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Section, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
10.3 – JURY WAIVER
You understand and agree that by entering into this Agreement you and BioLite are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section, you and BioLite might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
10.4 – SEVERABILITY
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable and the Dispute will be decided by a court.
10.5 – CONTINUATION
This Section shall survive the termination of your use of the Site.
11. – LOCAL LAWS; EXPORT CONTROL
BioLite controls and operates this Site from its headquarters in the United States of America and the Materials and Submissions may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
12. – FEEDBACK
If you send or transmit any business suggestions, ideas, or feedback concerning the Site, Products, Materials and/or any other content or services of BioLite, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Products, the Site and/or any services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and BioLite is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that BioLite is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
13. – GENERAL
If you violate these Terms, BioLite may terminate and/or suspend your access to this Site without notice. BioLite prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by BioLite, may result in immediate termination of your access to this Site. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Any disputes relating to these Terms or this Site will be heard in the courts located in Kings County in the State of New York. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. BioLite’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and BioLite and supersede all prior or contemporaneous negotiations, discussions or agreements between you and BioLite about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
14. – CONTACT US
If you have any questions about these Terms or otherwise need to contact BioLite for any reason, you can reach us at:
P.O. Box 21905
Brooklyn, New York 11201