WiFi Terms of Service
The Hershey Company Public WiFi Terms of Service and Acceptable Use Policy
Last Updated: April 23, 2019
By clicking your acceptance or by using the Service, you agree that you have read and are bound by this Agreement. If you do not agree with the terms and conditions set forth in this Agreement, do not use the Service. If you connect to the Service via one of the Organization’s roaming partners, a carrier or any other third party, your use of the Service may also be governed by that provider's terms of service.
This Agreement provides that all disputes between you and the Organization will be resolved by BINDING ARBITRATION, to the fullest extent permitted under applicable law. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 18 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with the Organization.
1. Access to the Service
The Service is a free public service provided by the Organization. Your access to the Service is jointly subject to the terms and conditions set forth in this Agreement and completely at the discretion of the Organization. Accordingly, your access to the Service may be limited, blocked, suspended, or terminated at any time and for any reason, whether in whole or in part, including, without limitation, violations arising from this Agreement, actions that may lead to liability for the Organization or its owners, disruption of access to other users or networks, violation of applicable laws or regulations, or conduct contrary to common sense standards of behavior. There may be time, speed, or data limits associated with your access to the Service. The speed and throughput of the Service will vary depending on a number of factors, including but not limited to: the capabilities of your wireless enabled device; the physical location of the wireless access points in the facility; user traffic during time of access, general Internet congestion, wireless signal interference, and the location of your mobile device within the facility. The Organization may revise or terminate this Agreement at any time. It is your responsibility to review it for any changes each time you access it. Only current guests at the facility may use the Service. You are responsible for providing your own computer or mobile device that is capable of accessing the Service with its own power source. The Organization does not provide power, information technology advice, or assistance to any user of the Service. The Organization may work with third parties to facilitate the provision of the Service (“Third Party Providers”).
3. Consent to Monitoring of Data Transmissions
YOU AGREE THAT THE ORGANIZATION AND THIRD PARTY PROVIDERS MAY, BUT ARE NOT REQUIRED TO, MONITOR YOUR COMMUNICATIONS AND ACTIVITIES (INCLUDING, WITHOUT LIMITATION, YOUR CONTENT, USAGE TIMES, SESSION DATA, BROWSER DATA, WEBSITE DATA, DATA VOLUMES, LOCATION, AND INFORMATION ABOUT YOUR DEVICES ACCESSING THE SERVICE) DURING TRANSMISSION OF DATA THROUGH AND IN CONNECTION WITH ACCESSING AND THE USE OF THIS SERVICE. THE ORGANIZATION AND THIRD PARTY PROVIDERS MAY COLLECT, PROCESS, USE, AND DISCLOSE ANY SUCH INFORMATION FOR PURPOSES OF PROVIDING AND IMPROVING THE SERVICE, ANALYZING USAGE, ENSURING USERS’ COMPLIANCE WITH THIS AGREEMENT AND APPLICABLE LAW, COOPERATING WITH LEGAL AUTHORITIES, AND AS OTHERWISE REASONABLY NECESSARY TO PROTECT THE ORGANIZATION'S AND THE THIRD PARTY PROVIDER’S RIGHTS, PROPERTY AND INTERESTS. GENERALLY THIS INFORMATION IS ANONYMOUS AND/OR AGGREGATED. Please see further information about our privacy practices in Section 9 below.
Access to the Service is currently free of charge. The Organization reserves the right to charge a fee to access the Service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged.
5. Ownership; Proprietary Rights.
The Service is owned and operated by the Organization and its Third Party Providers. The visual interfaces, graphics, design, compilation, information, information, data, computer code (including source code or object code), documents, products, software, services, and all other elements of the Service (“Materials”) provided by the Organization are protected by intellectual property and other laws. All Materials included in the Service are the property of the Organization or our third-party licensors. Except as expressly authorized by the Organization, you may not make use of the Materials. The Organization reserves all rights to the Materials not granted expressly in this Agreement.
6. Modifications to the Service
The Organization reserves the right to modify or discontinue, temporarily or permanently, at any time and from time to time, the Service (or any function or feature of the Service or any part thereof, including but not limited to rates and charges) with or without notice. You agree that the Organization will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service, and it is your responsibility to review this Agreement for any such notices. Your continued use of the Service following such changes constitutes your acceptance of those changes. If you do not agree to the revisions and amendments, you must terminate your Service immediately.
7. Operational Limits of the Service
Provisioning of the Service is subject to the availability and the operational limitations of the requisite equipment and associated facilities. You understand and agree that temporary interruptions of the Service may occur as normal events in the provision of the Service and that the Organization will not be liable for such interruptions. You further understand and agree that the Organization has no control over third party networks you may access in the course of your use of the Service, and therefore, delays and disruptions of other network transmissions are beyond the control of the Organization. The Organization will not be liable for any failure of performance, if such failure is due to any cause beyond the Organization’s reasonable control, including acts of God, fire, explosion, vandalism, nuclear disaster, terrorism, cable cut, storm or other similar occurrence, any law, order or regulation by any government, civil, or military authority, national emergencies, insurrections, riots, wars, labor difficulties, supplier failures, shortages, breaches, or delays, or delays caused by you or your equipment.
8. Third Party Content; Links to Third Party Sites
Materials provided by third parties and made available to you through the Service have not been independently authenticated in whole or in part by the Organization. The Organization does not provide, sell, license, or lease any of such materials other than those specifically identified as being provided by the Organization. This Service may link to other websites or provide access to Internet websites and services which are not under the control of and are not maintained by the Organization. The Organization is not responsible for the content of those sites and services. The Organization is providing these links or access to you only as a convenience, and the inclusion of any link to such sites does not imply endorsement by the Organization of those sites.
9. Privacy and Security
10. General Use Restrictions
Subject to your acceptance of and compliance with this Agreement, you are hereby granted the right to access and use the Service solely for your personal, non-commercial use for lawful purposes, on devices that you own or control through a revocable, non-exclusive, non-transferable and non-assignable limited license. The Service is provided for your use only (unless otherwise specifically stated) and you agree not to modify, interfere with, reproduce, duplicate, copy, sell, transfer, resell, reverse engineer, or exploit for any commercial purpose any portion of the Service, use of the Service, or access to the Service. You have no right to resell, sublicense, assign or transfer your right to access the Service. All Materials provided with this Service were provided by the Organization and/or by its manufacturers, authors, developers, licensors, licensees and vendors (the “Third Party Providers”) and are the copyrighted work of the Organization and/or the Third Party Providers. Except as stated herein, none of the Materials may be copied, reproduced, resold, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior express written permission of the Organization or the Third Party Provider, as applicable. You also may not, without the Organization’s express prior written permission, “mirror” any Material provided with this Service on any other server. Nothing provided with this Service shall be construed as conferring any license under any of the Organization’s or any Third Party Provider's intellectual property rights, whether by estoppels, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses. Any unauthorized use of any Materials provided with or through this Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
11. Acceptable Use of the Service
The Organization supports the responsible flow of information and ideas over the Internet. Your access to the Service is conditioned on legal and appropriate use of the Service. That includes, for instance, full compliance with all applicable laws and regulations, and courteous, respectful use at all times. You agree that your use of the Service and any activities conducted online through the Service shall not violate any applicable law or regulation or the rights of the Organization or any third party. In addition, this Acceptable Use Policy (“AUP”) is designed to help protect the Organization’s assets, the assets of its fans and users, and the Internet community, from irresponsible or illegal activities. These activities may disrupt or degrade both the Service and other aspects of the Organization’s business and operations, pose a threat to the Organization’s assets, and expose the Organization to claims of civil or criminal liability or other legal sanctions. You are responsible for your activities in connection with the Service and you agree to not perform the prohibited activities and strictly following the AUP terms set forth herein.
The Organization's decisions with respect to interpretation of the AUP and appropriate remedial actions are final and determined by the Organization in its sole discretion. Services shall not be used in connection with any criminal, civil or administrative violation of any applicable local, state, and provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule. The Organization may refer potential violations of law(s) to the proper authorities, may cooperate in the investigation of any suspected criminal or civil wrongdoing, and will cooperate with authorities when required to do so by law, subpoena, or when the public safety is at stake. The Organization assumes no obligation to inform you that your information has been disclosed, and, in some cases, may be prohibited by law from providing such notice.
The Organization does not, as an ordinary practice, proactively monitor the activities of those who use the Service or exercise any editorial control over any material transmitted, hosted or posted using the Service to ensure that its users comply with the AUP and/or the law, although it reserves the right to do so. If the Organization is alerted to violations or potential violations of this AUP, the Organization may take whatever measures it deems necessary and appropriate to stop or prevent such violations including the actions described in this Agreement.
The following represents a sampling of behaviors and conduct that are not acceptable and constitute express violations of the AUP:
- Spamming and Invasion of Privacy: Sending unsolicited bulk and/or commercial messages or activities that invade another's privacy.
- Intellectual Property Rights Violations: Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including patents, copyrights, trademarks, service marks, trade secrets, or any other proprietary right of any third party. Without limiting the generality of the foregoing, you are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity) or other proprietary right of any party unless you own or control the rights thereto or have received all necessary consent to do the same.
- Obscene or Indecent Speech or Materials: Advertising, soliciting, transmitting, storing, posting, displaying, forwarding, or otherwise making available, accessing, or sharing obscene or indecent images or other materials. The Organization will notify and cooperate with law enforcement if it becomes aware of any use of the Service in any connection with, for instance, child pornography, or the solicitation of sex with minors.
- Defamatory or Abusive Language: Transmitting, posting, uploading, downloading, forwarding, or otherwise making available defamatory, harassing, abusive, threatening or disrespectful material or language, including conduct that encourages bodily harm, destruction of property or harassment.
- Impersonation: "Spoofing" or otherwise impersonating any other party, falsely stating or otherwise misrepresenting your identity or affiliation in any way, or forge, delete or alter any part of TCP/IP packet header or sender identification information in any communication.
- Hacking: Violating the security or integrity of or accessing illegally, or without authorization, computers, accounts, equipment or networks of another party, or attempting to do this or to penetrate or attempt to penetrate security measures of another system or person. This includes any activity that may be used as a precursor to an attempted system or security penetration, including, without limit, port scans, stealth scans, or other information gathering activity.
- Phishing: using the Service to deliver spyware, or secretly or deceptively obtain the personal information of third parties (phishing, etc.), or engage in modem hi-jacking.
- Internet Viruses, Trojan Horses, or Other Destructive or Intrusive Activities: Any association with Internet viruses, worms, Trojan Horses, pinging, flooding, mail-bombing, imposing an unreasonable or disproportionately large load on any systems or infrastructure, or denial of service attacks. Also, activities intended to disrupt (successful or not) the use of or interfere with the ability of others to effectively use the Service or any connected network, system, service, or equipment, attempting (successful or not) to secure information without another’s knowledge or consent, or attempting (successful or not) to intercept, divert or otherwise interfere with any communication.
- Facilitating a Violation of this Agreement of Use: Advertising, transmitting, or otherwise making available any software product, product, or service that is designed to violate this Agreement. This includes the facilitation of the means to spam, initiation of pinging, flooding, mail-bombing, denial of service attacks, and piracy of software.
- Other Illegal Activities: Using the Service in violation of applicable law and regulation, including, without limitation, advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging or making use of another’s credit cards, engaging in the transmission and distribution of pirated software, or making fraudulent or misleading offers to sell or buy products, items, or services. This includes any conduct that would expose the Organization or its Third Party Providers to civil or criminal liability.
- Resale: Selling, transferring, or renting the Service to customers, clients or others, either directly or as part of a service or product created for resale.
- Circumventing: Using any software or device designed to defeat system time-out limits or to allow your account to stay logged on while you are not actively using the Service, using the Service for the purpose of operating a server of any type, and/or using manual or electronic means to avoid any use limitations placed on the Service.
12. Your Responsibilities
After you have received services through the Service, you may have the opportunity to rate your experience and leave additional feedback. If you choose to provide input or suggestions regarding problems with your experience with the Services (“Feedback”), then you hereby grant the Organization an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
To the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will defend and indemnify the Organization and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Organization Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
15. Disclaimers; Warranties
THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ORGANIZATION ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE DATA OR OTHER INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE. THE ORGANIZATION ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE ORGANIZATION OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ORGANIZATION ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability
IN NO EVENT WILL THE ORGANIZATION ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ORGANIZATION ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE ORGANIZATION ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PRODUCTS SOLD THROUGH THE SERVICE, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Force Majeure.
To the fullest extent permitted under applicable law, the Organization will be excused from performance under this Agreement for any period that it is prevented from or delayed in performing any obligations pursuant to this Agreement, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet disruption or downtime; (5) unauthorized access to Organization’s information technology systems by third parties; or (6) other causes beyond the reasonable control of Organization.
18. Dispute Resolution and Arbitration
a. Generally. In the interest of resolving disputes between you and the Organization in the most expedient and cost effective manner, you and the Organization agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE ORGANIZATION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
b. Exceptions. Despite the provisions of Section 18.a, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and the Organization will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting the Organization.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). The Organization’s address for Notice is: [ADDRESS]. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or the Organization may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the Organization must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, the Organization will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any, subject to the limitations of liability contained herein; (ii) the last written settlement amount offered by the Organization in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
e. Fees. If you commence arbitration in accordance with this Agreement, the Organization will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Dauphin County, Pennsylvania, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse the Organization for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND THE ORGANIZATION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Organization agree otherwise, 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.
g. Modifications to this Arbitration Provision. If the Organization makes any future change to this arbitration provision, other than a change to the Organization’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to the Organization’s address for Notice, in which case your account with the Organization will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
h. Enforceability. If Section 18.f is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 (except this Section 18.h) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to this Agreement.
To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to this Agreement shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
20. Governing Law and Venue
This Agreement and your use of the Service is governed by the laws of the State of Pennsylvania without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under this Agreement, then you and the Organization agree to submit to the exclusive jurisdiction of the state courts and federal courts located within Dauphin County, Pennsylvania for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof. The Service is operated in the United States of America, and we make no representation that the Service or Materials included in the Service are appropriate or available for use in other locations.
You may not use the Service if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Services. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
This Agreement shall not be construed as creating a partnership, joint venture, agency relationship or granting a franchise between the parties. Except as otherwise provided above, any waiver, amendment or other modification of this Agreement will be ineffective unless it is in writing and signed by the party against whom enforcement is sought. Any provision of this Agreement held to be unenforceable, in whole or in part, will not affect the validity of the other provisions of this Agreement. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision.
The Organization’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall waive or impede the Organization’s right to comply with law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by the Organization with respect to such use. This Agreement constitutes the complete and entire statement of all terms, conditions and representations of the agreement between you and the Organization with respect to its subject matter and supersedes all prior writings or understanding.
23. Consumer Protection Notice.
Please note that, if you are a consumer, the limitations in this Agreement are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.