Terms of Service
Terms of Service
Bormerco, LLC, a limited liability company organized under the laws of the state of Michigan and doing business as Smarterhomecooking.com (“SmarterHomeCooking”, “we”, “us”, or “our”) provides certain services through our website located at smarterhomecooking.com, as well as such other websites or mobile applications that we own or operate (collectively, the “Bormerco Website”, or “Our Website”). Users of Our Website include persons or entities that access the Bormerco Website and/or register through Our Website (each, a “Client” and collectively, “Clients”), who, in turn, own and operate their own websites or mobile applications (“Client Site(s)”), and who wish to utilize our code, software and services and reports (the “Service(s)”) to analyze and obtain information regarding how third party visitors to their Client Sites (“Client Site Visitor(s)”) are interacting with their Client Sites (“Visitor Information”). Users of Our Website may also include persons or entities who are otherwise visiting Our Website (“Other Users”).
TO USE OUR WEBSITE OR ANY OF THE SERVICES, YOU MUST BE AT LEAST 13 YEARS OLD. IF YOU ARE LESS THAN 13 YEARS OLD, YOU MAY NOT USE OUR WEBSITE OR SERVICES. IF YOU ARE UNDER THE AGE OF 18, YOU MAY ONLY USE THE OUR WEBSITE OR SERVICES UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN.
BY USING OUR WEBSITE OR ANY OF THE SERVICES, YOU WARRANT YOUR OWN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING THE DATA PRIVACY LAWS REGARDING THIRD-PARTIES KNOWN COLLECTIVELY AS THE GENERAL DATA PROTECTION REGULATIONS. BY SUCH USE, YOU SHALL FULLY INDEMNIFY US AND HOLD US HARMLESS AGAINST ANY CLAIMS ARISING AGAINST YOU UNDER ANY APPLICABLE LAWS, INCLUDING THE GENERAL DATA PROTECTION REGULATIONS, ARISING IN ANY WAY FROM OUR SERVICES OR WEBSITE.
1. Account registration and access
To register for any Services and create an account, you must complete the registration process by providing Bormerco with the information prompted by the registration form, including name, e-mail address (username), phone number, website URL, website name, password, and potentially billing information. You agree to provide us with complete and accurate information when you register for the Service, and to keep such information up to date. Our Website may allow you to login to your account through online accounts you may have with third party social networking sites such as Google. You agree and acknowledge that your use of such social network services is subject to such terms and conditions and / or privacy policies of such social network sites, and agree to abide by such requirements.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow an employee or agent to access the Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify Bormerco immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Service.
Bormerco may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
Bormerco offers a free version of its service and a premium version which requires a customer to pay to access and use the service. Currently, the paid version of the service comes with additional features and supports a greater volume of Bormerco that can receive push notifications. Bormerco reserves the right to change what is in included in the free and premium versions of the service at any time and within its sole discretion. Bormerco reserves the right to change this pricing.
2. License from Bormerco
Except as expressly set forth herein, you shall not (A) use, reproduce, modify or create derivative works of the Bormerco Script, Bormerco Technology (as defined below), Our Website, or any of the Services, or (B) transfer, lease, lend, sublicense, use for timesharing, or service bureau purposes, resell or otherwise distribute or allow third-party access to all or any portion of the Bormerco Script, Bormerco Technology, Our Website, or any of the Services.
3. Licenses to Bormerco
3.1 License to Client Data
As between the parties, you shall retain ownership of any information, data and statistics that Bormerco obtains from your Client Site, such as raw data and log files generated by the Service.
You hereby grant to Bormerco a royalty-free, non-exclusive, irrevocable, right and license to access your Client Site(s) and to collect any information concerning Client Site Visitors’ actions or activities on your Client Site(s), any information sent to you by Client Site Visitors’ web browsers concerning such Client Site Visitors’ activities prior to visiting your Client Site(s) (e.g., URL information and HTTP header information), and/or any data or other information you provide to Bormerco or that is otherwise accessible from your Client Sites (collectively “Client Data”) for (i) providing you the Service, including, without limitation, any reports and other functions related to the Service; (ii) analyzing and improving the Services generally; (iii) review, compile, or analyze aggregate data derived from the Services to compile statistics, metrics, insights, general trend data about the Service for, among other things, marketing and promotional purposes.
In addition, you grant Bormerco the right to access Client Data for the purposes of (A) providing you with reports and other functions related to the Services; (B) analyzing and improving the Services; and(C) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, marketing and promotional purposes.
You represent and warrant that you have all rights, licenses, and consents required to license Client Data to Bormerco on these terms, and further represent and warrant that this license does not infringe the rights of any third party or violate any applicable law or regulation.
3.2 License to Material Which You Post
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material (“Material”) to Our Website, you hereby grant Bormerco an irrevocable, perpetual, non-exclusive, royalty-free, sublicensable worldwide license to reproduce, adapt, distribute, perform or publicly display all or any portion of the Material on our Services. You further represent and warrant that you own all rights to such Material and that this license does not infringe the rights of any third party or violate any applicable law or regulation.
As used in this Section 5, “Personally Identifiable Information” refers to information that can be used to personally identify an individual, such as name, address and phone number. Pseudonymous information shall not be considered “Personally Identifiable Information” for purposes of these Terms of Service.
4.1 Cookies Used by the Bormerco Script for Client Site Visitors
4.2 Your Obligations With Respect to Client Site Visitors and Other Third Parties
With respect to Client Site Visitors, you will not (i) use the Service to collect Personally Identifiable Information; (ii) use the Service to associate any data gathered from your Client Site with any Personally Identifiable Information from any source; or (iii) pass on or transmit any Personally Identifiable Information of any Client Site Visitors to Bormerco and/or the Service for any purpose, whether through Materials that you submit or upload to Our Website, or otherwise.
You agree and acknowledge that Bormerco does not knowingly or willfully collect Personally Identifiable Information from Client Site Visitors. If and to the extent that your Client Site collects Personally Identifiable Information or other content from Client Site Visitors, such as, by way of example, through a form submitted by a Client Site Visitor to the Client Site or by submission of multimedia content by Client Site Visitors to the Client Site, you will notify Bormerco in advance of any such collections (“Visitor Submitted Content”).
Your Bormerco account is protected by a username and password, and should be accessed only by you or your authorized employees or agents accessing the Services on your behalf. For maximum protection, you should protect against unauthorized access to your username and password and remember to log off when using any shared computer or device. Bormerco has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited access, firewalls and SSL encryption to protect transmission of data.
However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to Bormerco, information we compile on your behalf, and/or information that we collect about you. Bormerco cannot guarantee the security of such information and is not responsible for unauthorized access to Client accounts. We disclaim any liability for any theft or loss of, unauthorized access or damage to, or interception of any data or communications of Clients, Client Site Visitors, or Other Users.
4.4 Bormerco Limits Access to Your Information
4.5 Aggregate Reports
4.6 Services Not Available for Websites Directed To Children
You may not use the Services in connection with any website labeled or described as a “Kid’s” or “Children’s” website or any website directed at individuals under the age of 13. Each Client hereby represents and warrants that all of its Client Site Visitors are age 13 or over.
5. Proprietary rights; restrictions on use
5.1 Content on the Bormerco Website
Any opinions expressed by the contributors, authors and moderators who post content to the Bormerco Website are the personal opinions of the authors, not of Bormerco, whether or not the authors are employees or contractors of Bormerco. The Bormerco Website and all materials published and/or distributed on or through the Bormerco Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by Bormerco or any other party. You are solely responsible for your use of and access to any galleries, forums, chat rooms, blogs, message boards, online hosting or storage services, or other areas or Services on Our Website in which you or other users may create, post or store Materials (the “Interactive Areas”) and you will use the Interactive Areas at your own risk. You understand that when using the Our Website, you may be exposed to Material provided by other users or content provided by other third parties, and you agree that we are not responsible for the accuracy, safety, appropriateness or intellectual property rights in or related to such Materials or content. Users can be held liable for any illegal or prohibited Materials they provide to Our Website, including among other things, infringing, defamatory or offensive materials. If you discover this kind of material on the Site, please notify us at info@Bormerco.com. We will investigate your claim and may then take the actions deemed appropriate.
5.2 Disclaimers of Third Party Content.
5.3 Copyright Complaints
We respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any Materials infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- 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 work claimed to have been infringed, or, if multiple copyrighted 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 and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- 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 owner, its agent, or the law; and
- 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.
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.
Designated Agent: Bormerco
Address of Designated Agent:
140 Cady Centre, Suite 128
Northville, MI 48167
Email Address of Designated Agent: support@Bormerco.com
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s address in our records.
For clarity, only DMCA notices should go to our Designated Agent named above; any other feedback, comments, requests for technical support, and other communications should be directed to Bormerco customer service at support@Bormerco.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
5.4 Your Feedback.
You acknowledge and agree that any feedback, ideas, suggestions, or proposals that you provide (“Feedback”) in the form of email or other submissions to us (including, but not limited to, any status or other updates) or otherwise post on or provide via Our Website will, to the maximum extent permissible under applicable laws, automatically become our sole property, and you hereby assign to us, exclusively and throughout the world, all rights, title, and interests in such Feedback, all intellectual property rights embodied therein, and otherwise, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback. You are not entitled to any acknowledgment, compensation or reimbursement in connection with such Feedback or grant of rights to same. By providing such Feedback, you acknowledge and agree that: (a) your Feedback do not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we will be entitled to use or disclose (or choose not to use or disclose) any Feedback for any purpose, in any way, in any media worldwide; (d) we may have something similar to the Feedback already under consideration or in development; (e) your Feedback automatically become our property without our obligation to you; and (f) we may, but are not obligated to, review or monitor areas on Our Website where users may transmit or post Feedback.
Except for the limited licenses expressly granted herein, Bormerco expressly reserves all right, title and interest in and to the Bormerco Script, content on the Bormerco Website, and all processing, analytics, and other software and technology used by Bormerco in the analysis of your Client Site and/or the provision of the Service (“Bormerco Technology”), including, without limitation, any derivatives, improvements, enhancements or extensions of the Bormerco Technology conceived, reduced to practice or otherwise developed on or on behalf of Bormerco, all of which are valuable assets of Bormerco, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
5.6 Restrictions on Use
You shall not (i) use, or allow the use of, the Services or any Bormerco Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Bormerco or inconsistent with Bormerco’ standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Services or Bormerco Technology, or attempt to access data of any other customer of Bormerco; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Bormerco; (v) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Services; (vi) use the Services, or any Bormerco Technology, for academic research or research unrelated to your Visitors or the Client Site web page(s) registered for use with the Services, contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program; (viii) post or transmit any message, data, image or program that would violate any property rights of others; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; (x) deep-link to Our Website for any purpose, unless specifically authorized by us in writing to do so; or (xi) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
You agree to indemnify, hold harmless and (if requested by Bormerco) defend Bormerco, our affiliates, licensors, and their respective independent contractors, service providers, consultants, directors, officers, employees and agents, and applicable third parties (such as licensors, partners and advertisers (collectively, the “Indemnified Parties”) harmless at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, including, by way of example, any breach of applicable laws caused by your use of the Services, (iii) your unauthorized use of the Bormerco Script or other Services; (iv) any violation of any rights of third parties caused by your acts or omissions. In such instances, Bormerco will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to Bormerco within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. Bormerco reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
7. Representations and warranties; disclaimers
7.1 Your Representations and Warranties.
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Bormerco and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites (“Third Party Websites”). Access to Third Party Websites is at your own risk and Bormerco is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites. The Third Party Websites are not under the control of Bormerco and as such, Bormerco is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Website. Bormerco provides these links merely as a convenience and the inclusion of such links does not imply an endorsement or recommendation.
Bormerco does not represent or warrant that (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services, including any reports, will be correct, accurate, timely, or otherwise reliable. You specifically agree that Bormerco shall not be responsible for unauthorized access to or alteration of your data.
THE SERVICES, THE Bormerco SCRIPT, THE Bormerco TECHNOLOGY, AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY Bormerco EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE Bormerco SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Bormerco DOES NOT WARRANT THAT THE SERVICES, THE Bormerco SCRIPT, THE Bormerco TECHNOLOGY, OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
8. Services failures
Bormerco does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of your equipment, systems or local access services; (iii) for previously scheduled maintenance; or (iv) relating to events beyond Bormerco’ control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Bormerco or your servers are located or co-located.
9. Limitations of liability; Release
NEITHER Bormerco, NOR our affiliates, licensors, and their respective independent contractors, service providers, consultants, directors, officers, employees and agents WILL BE LIABLE TO YOU OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL
YOU AGREE THAT THE CUMULATIVE LIABILITY OF Bormerco, ITS affiliates, licensors, and their respective independent contractors, service providers, consultants, directors, officers, employees and agents TO YOU OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO Bormerco, IF ANY, FOR USE OF THE SERVICES DURING THE MONTH PRECEDING THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY.
IF YOU ARE A CALIFORNIA RESIDENT, YOU 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” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.
The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
10. U.S. Government Rights
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. § 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. § 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in Bormerco Technology, including its rights to use, modify, reproduce, release, perform, display or disclose Bormerco Technology, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
11. Term and termination
11.1 In General
Bormerco may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
11.2 Termination of Services
Upon any termination of the Services (i) Bormerco will cease providing the Service; (ii) you will delete all copies of the Bormerco Script from your web page(s); (iii) any outstanding balance payable by you to Bormerco will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through Bormerco.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the Bormerco Script from such web page. You understand and acknowledge that, unless and until the Bormerco Script is deleted from a web page, the Bormerco Script may continue to track information on such web page on an automated basis.
12. Modifications to this agreement and other policies
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (i) by obtaining our written consent in a notarized agreement signed by an officer of Bormerco; or (ii) as set forth below in the immediately following paragraph.
You agree that Bormerco may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by posting a notice on the Bormerco Website for 30 days following any revisions or modifications to this Agreement and/or by posting a notice on the Bormerco Website the first time that you visit the Bormerco Website following such revisions or modifications. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after the passage of 30 days from the time the revised terms and conditions are first posted on the Bormerco Website. We assume no responsibility for your failure to actually receive notice. You are responsible for regularly reviewing the Bormerco Website for revisions to this Agreement.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
14. Arbitration and class action waiver
a) EXCEPT WHERE PROHIBITED BY LAW, YOU AND BORMERCO UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND BORMERCO, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES (INCLUDING DISPUTES AGAINST ANY AGENT, EMPLOYEE, SUBSIDIARY, AFFILIATE, PREDECESSOR IN INTEREST, SUCCESSOR, OR ASSIGN OF THE OTHER) RELATING TO THE SITE, THE INFORMATION AND MATERIALS PUBLISHED BY BORMERCO ON OR THROUGH THE SITE, ANY TRANSACTION OR RELATIONSHIP BETWEEN US RESULTING FROM YOUR USE OF THE SITE, COMMUNICATIONS BETWEEN US, AND YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A NEVADA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY, CONSTRUED, AND ENFORCED, BOTH PROCEDURALLY AND SUBSTANTIVELY, BY THE FEDERAL ARBITRATION ACT 9 U.S.C. § 1-9 (“FAA”), to the maximum extent permitted by applicable law. THIS SECTION 15 (ARBITRATION AND CLASS ACTION WAIVER) SHALL SURVIVE TERMINATION OF THE SERVICES OR OF THESE TERMS AND CONDITIONS TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS.
The following procedures shall apply:
i) Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein.
ii) In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted by the American Arbitration Association (“AAA”), and shall be conducted using the then current Commercial Arbitration Rules of the AAA (except as varied by this agreement). The arbitration shall take place in OAKLAND COUNTY, MICHIGAN, but may proceed telephonically in the event the total amount of the claim does not exceed $10,000 U.S. dollars (if the claimant so chooses).
iii) Payment of all filing, administration, and arbitrator fees will be governed by AAA’s rules.
iv) If for any reason the AAA is unavailable, the parties shall select JAMS.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST Bormerco, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITE OR SERVICES.
15. Miscellaneous; applicable law and venue
Bormerco shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
15.3 Choice of Law and Forum
With the exception that the enforceability of Section 15 (Arbitration and Class Action Waiver), which is governed both procedurally and substantively by the FAA, this Agreement shall be governed by and construed under the laws of the state of Nevada without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Michigan law, rules, and regulations, Michigan law, rules and regulations shall prevail and govern. Except to the extent that arbitration is required in accordance with Section 15 (Arbitration and Class Action Waiver) above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Oakland County, Michigan. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Oakland County, Michigan. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Bormerco Script and Bormerco Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
When you visit the Website or send emails to us, you communicate with us electronically and consent to receive communications from us electronically. We may communicate with you by: (a) email to your email address indicated in your communications with us, (b) posting general notices on Our Website, or (c) posting messages that are displayed to you when you log in to or access Our Website. Bormerco may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your Bormerco account or by written communication delivered by first class U.S. mail to your address on record. You agree that all agreements, notices, disclosures and other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing.
Any notices to Bormerco must be sent to:
140 Cady Centre, Suite 128
Northville, MI 48167
via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default.
15.5 Transfer of Rights
You may not assign or otherwise transfer any of your rights hereunder without Bormerco’ prior written consent, and any such attempt is void. The relationship between Bormerco and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
15.7 Entire Agreement
If any provision of these Terms and Conditions is found to be void or unenforceable, then the remainder will have full force and effect, and the invalid provision will be partially enforced to the maximum extent permitted by law to effectuate the purpose of these Terms and Conditions
16. International use
Recognizing the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the Services. Further, use of the Services for Client Sites in certain jurisdictions outside of the U.S. may be conditioned upon your entry into a separate addendum governing the use of the Services for Client Sites in those jurisdictions (each, a “Foreign Addendum” and collectively, the Foreign Addenda”). You agree and acknowledge that Bormerco may condition your use of any of the Services or any Client Sites outside of the United States on entry into a Foreign Addendum which may be provided separately by Bormerco.