These Terms and Conditions (the “Terms“) are entered into between you and the contracting entity INNengine SL (“Company“, “we” or “us“) and apply to your use of the website www.innengine.com (“Website”), your purchase and use of the motor sold by the Company along with any spare parts, accessories, clothing, tools or other related products (the “Products“), and the related online platform and application we make available for use in connection with the Products (the “Platform“). The Website and any content, tools, features and functionality offered on or through our Website, the Products and the Platform are collectively referred to as the “Services“.
Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 10 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes (with limited exception) related to the Company’s Services AND/or products through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions, as set forth below. You have the right to opt-out of the arbitration clause and the class action waiver as explained in Section 10.
1. Who May Use the Services
You must be 18 years of age or older to use the Services. By using the Services, you represent and warrant that you meet these requirements.
2. User Accounts; SUBSCRIPTIONS
2.1 Creating and Safeguarding your Account. To use certain of the Services, you need to create an account or link to another account, such as your Facebook or Google account (“Account“). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the settings page for your account profile. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at firstname.lastname@example.org if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed your, or we previously banned you from any of our Services, unless we provide written consent otherwise.
2.2 Subscription Payment. If you buy or subscribe to any of our paid Services, you agree to pay us the applicable fees and taxes in the local currency for your jurisdiction. Failure to pay these fees and taxes will result in the termination of your access to the paid Services. You agree that (a) if you purchase a recurring subscription to any of the Services (i.e., premium features), we may store and continue billing your payment method (e.g. credit card) to avoid interruption of such Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to your subscription plan will take effect following reasonable notice to you. All subscriptions are payable in accordance with payment terms in effect at the time the subscription becomes payable. Payment can be made by credit card, debit card, or other means that we may make available. Subscriptions will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.
2.3 Subscription Renewals and Cancellations. You agree that if you purchase a subscription, your subscription will automatically renew on a monthly basis and at the then-current rates, and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. To avoid future subscription charges, you must cancel your subscription 90 days before the subscription period renewal date through the settings page of your Account profile.
2.4 No Subscription Refunds. Except as expressly set forth in these Terms, payments for any subscriptions to the Services are nonrefundable and there are no credits for partially used periods. Following any cancellation by you, however, you will continue to have access to the paid Services through the end of the subscription period for which payment has already been made.
3. ORDERS FOR PRODUCTS AND/OR SERVICES
3.1 Payment. The Services permit you to purchase Products through the Website and the Platform, including products or services of third parties that are offered through the Services. You acknowledge and agree that all information you provide with regards to a purchase of Products, including, without limitation, credit card, PayPal, or other payment information, is accurate, current and complete. Payment can be made by the methods indicated in the checkout process. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Products, and (b) refuse to allow any user to purchase any Products or deliver such Products to a user or a user designated address. When you purchase Products, you (a) agree to pay the price for such Products as set forth in the applicable Service, and all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount“), and (b) authorize us to charge your credit card or other payment method for the Full Purchase Amount. The currency charged will depend on which country you are purchasing the Product from. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Orders will not be processed until payment has been received in full, and any holds on your account by any payment processor are solely your responsibility.
3.2 Deposits. We may, from time to time, offer the option to reserve a Product in advance by making a deposit which will be fully refundable up to the moment a delivery date is confirmed (approximately one month before delivery). The deposit amount will be set forth in the checkout process and will vary depending on the Product purchased. We may cancel your reservation and refund your deposit at any time. Before any scheduled delivery, you will receive an email or other notice from the Company with instructions on how to complete the remaining payment for the Product (and we will attempt to send such email to you at least 2 weeks before any scheduled delivery). If payment is not provided within 48 hours of receiving such email, your order will be cancelled unless we consent otherwise.
3.3 Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes“) that may be redeemed for discounts on future Offerings, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
3.4 Gift Cards. Tangible and/or digital gift cards containing stored money value may be offered by us for the purchase of Offerings (“Gift Cards“). The Company does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to your Gift Card balance, or alteration, theft, or destruction of a Gift Card or Gift Card code that results from any action by you or a third party. We may suspend or prohibit use of your Gift Card if your Gift Card or Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner. If your Gift Card code stops working, your only remedy is for us to issue you a replacement Gift Card code. By purchasing a Gift Card, you agree and represent and warrant to the Company that your use of the Gift Card will comply with these Terms and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Gift Cards cannot be used to purchase other gift cards, reloaded, resold, used for payment outside of the Services, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law).
3.5 Changes and Pricing. The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any Products. While we attempt to be as accurate as we can in our descriptions for the Products, we do not warrant that Product descriptions are accurate, complete, reliable, current, or error-free. For example, there is a risk of coloring and display errors on the Platform due to computer screen resolutions and actual Product colors may vary. Additionally, some features are subject to change based on local regulations and as such the features shown in a Product on the Platform or Website may differ from the delivered Product. The inclusion of any Products for purchase through the Services at a particular time does not imply or warrant that the Products will be available at any other time. We reserve the right to change prices for Products displayed on the Services at any time, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Products prices to the Services and/or upon making the customer aware of the pricing error. In the United States and Canada, sales tax is not included in the price shown on the Website and will be added according to federal and state regulations before final payment.
3.6 Order Acceptance. Once we receive your order for a Product, we will provide you with an order confirmation. Your receipt of an order confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason and in our sole discretion. If we cancel an order after you have already been billed, then we will refund the billed amount.
3.7 Shipment. Shipping costs are indicated at checkout, and shipping conditions are applied according to Incoterms standards. Products delivered in any of the following countries will be undertaken according to DDP Incoterms: countries in the European Union, Switzerland, the United Kingdom, Norway, Iceland, Isle of Man, Liechtenstein, Luxembourg, Malta, the United States, Canada, Australia, New Zealand, Turkey, Ukraine and Belarus. For the rest of the world, DAP Incoterms will apply, meaning that the payment of customs and taxes are the responsibility of the purchaser. Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. All orders are shipped using one of our third-party couriers. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific date or time and will not be responsible for any damages that may occur due to a delay or obligated to provide any discounts, refunds or credits due to any such delays.
3.8 Returns and Refunds. The Company will not accept any returns or cancellations nor issue refunds for deposits or purchases of any customized Products. If you purchased a non-customized Product, you have the right to return your order within 14 days by emailing us at email@example.com before the end of the 14-day period. The Products must be returned to the Company in their original condition and packaging. Note that additional duties, taxes or shipping costs will not be refunded. You will be responsible for the cost of shipping any returns, and the Company will charge an additional return fee to cover restocking expenses, which will vary depending on the Product.
3.9 Manufacturer’s Warranty and Disclaimers. Certain of the Products made available on the Services are manufactured by third parties (“Third Party Products“). The availability of Third Party Products through the Services does not indicate an affiliation with or endorsement by us of any Third Party Product or its manufacturer. Accordingly, we do not provide any warranties with respect to the Third Party Products. However, the Third Party Products offered on our Services are covered by the manufacturer’s warranty as detailed in the manufacturer’s documentation included with the Third Party Product. To obtain warranty service for defective Third Party Products, please follow the instructions included in the manufacturer’s warranty.
3.10 No Delivery or other Services to Children. Users under the age of 13 are not permitted to use any of the Services. User are not allowed to give the Company the personal information of any persons under the age of 13 for delivery or shipping purposes or for any other reason.
5. Rights We Grant You
5.1 Right to Use Services. We hereby permit you to use the Services for your personal use only, provided that you comply with these Terms in connection with all such use. If the Products include software and related documentation owned or controlled by us which are distributed to you as part of your use of the particular Product. Such software is licensed to you only, and accordingly, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Product (and right to download a single copy of the Platform onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Product as permitted by these Terms. You may not modify, decompile, or attempt to extract such software from any Product. This license excludes the right to rent, lease, display or otherwise distribute or make the software available to any third party. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take. All rights not expressly granted to you under these terms are reserved by the Company.
5.2 Restrictions. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
(b) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
(c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(e) use the Services to collect any personal information;
(f) exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
(g) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(h) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(i) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(j) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(k) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(l) submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, defamatory, obscene, lewd, lascivious, filthy, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, harmful, hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the Services for illegal, harassing, bullying, unethical or disruptive purposes, or otherwise use the Services in a manner that is obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, hateful, cruel or insensitive, deceptive, threatening, abusive, inflammatory, pornographic, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable;
(m) violate any applicable law or regulation in connection with your access to or use of the Services; or
(n) access or use the Services in any way not expressly permitted by these Terms.
5.3 Use of the Platform. You are responsible for providing the correct device, equipment, wireless service plan, web browser (i.e., Google Chrome, Firefox and Safari), software, Internet connections and/or other equipment or services that you need to download, install and use the Platform. We do not guarantee that the Platform can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the Platform or will be available in, or that orders for Products can be placed from, any particular geographic location. We do not guarantee that the Platform will work with any particular web browser, and we may stop supporting any web browser at any time in our discretion. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the Platform (“Push Messages“). You acknowledge that, when you use the Platform, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Platform, including your receipt of Push Messages from the Company. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Platform on your mobile device, including for your receipt of Push Messages from the Company.
6. Ownership and Content
6.1 Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works. You are prohibited from modifying, copying, reproducing, communicating to the public or distributing, in whole or in part, the Services or any of its content for any public or commercial purposes, except with our prior written consent.
6.2 Ownership of Trademarks. The Company’s name, trademarks, logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
6.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback“). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
6.4 Your Content License Grant. In connection with your use of the Services, including the Platform, you may be able to post, upload, or submit content, information and other materials to be made available through the Services (“Your Content“). In order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content but solely as required to be able to operate and provide the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. As part of the foregoing license grant you agree that the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services. To the fullest extent permitted by applicable law, the Company reserves the right, and has absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
6.5 Notice of Infringement – DMCA (Copyright) Policy
If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA“), by providing the following information in writing:
(a) identification of the copyrighted work that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by email to: INNengine S.L., Attn: Ruben Garrido, firstname.lastname@example.org. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
A user of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by fax or regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
7. Third Party Services and Materials
7.1 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials“) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you and do not imply any type of relationship, collaboration or dependency between us and the owners of the Third-Party Materials.
8.1 You represent that you shall treat as strictly confidential any and all information, data, materials or documentation received by you, including all business, financial, operational, technical and marketing information, and any other information of a secret or proprietary nature, or which must be treated as confidential, relating to us, the Services, these Terms or any third party (the “Confidential Information“). You shall not disclose the Confidential Information to any other person or entity, and you acknowledge that you shall not reproduce, use, sell, license, exhibit, publish or otherwise disclose the Confidential Information in any way without our prior written consent.
9. Disclaimers, Limitations of Liability and Indemnification
(a) Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities“) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, usefulness, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) any damage or loss caused by your violation of these Terms, including through your negligent or fraudulent use of the Services; (f) any actions of any third parties not controlled by us; (g) any decisions taken by you or any damages caused to you or a third party as a result of information provided through the Services; (h) damages caused to your equipment or that of a third party during your use of the Services; and (i) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
(b) The Products may receive over-the-air software updates through Wi-Fi that add new feature and enhance existing features. However, after the expiration of your warranty, software updates may not be provided for your particular Product, or may not include all existing or new features or functionality depending on your vehicle’s age, configuration, data storage capacity or parts. We are not liable for any parts or labor or any other cost needed to update or retrofit your Product so that it may receive these updates or any Product issues occurring after installation of any software updates due to obsolete, malfunctioning or damaged hardware (except as covered by your warranty).
(c) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(d) THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
(e) YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE COMPANY ENTITIES WILL BE RESPONSIBLE FOR.
9.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT YOU PAID THE COMPANY ENTITIES IN THE PAST TWELVE (12) MONTHS FOR THE SERVICES (OR PRODUCTS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.3 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) Your Content, or (e) your negligence or wilful misconduct. If you are obligated to indemnify any Company Entity hereunder, then you agree that Company (or, at its discretion, the applicable Company Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Company wishes to settle, and if so, on what terms, and you agree to fully cooperate with Company in the defense or settlement of such claim.
10. ARBITRATION AND CLASS ACTION WAIVER
10.1PLEASE READ THIS SECTIONCAREFULLY– IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
10.2 Informal Process First. You and the Company agree that in the event of any dispute between you and the Company Entities, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party 30 days to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
10.3 Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim“) relating in any way to the Company’s services and/or products, including the Services, and any use or access or lack of access thereto, will be resolved by arbitration, including threshold questions of arbitrability of the Claim, except as permitted herein. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMSunder its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “JAMS Rules“) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with the Company, these Terms, and this Arbitration 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 will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you.
10.4 Exceptions. Notwithstanding the foregoing, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction:
(1) Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding;
(2) Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or
(3) Intellectual property disputes.
10.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).
Fees and costs may be awarded as provided pursuant to applicable law. 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 JAMS rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement. 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.
10.6 Opt-Out**. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to opt-out to the contact information listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your first registering to use the Services or agreeing to these Terms (or if this Section 10 is amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms, and the notice must specify your name and mailing address. **** If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. **** If you opt-out of these arbitration provisions, the Company also will not be bound by them.**
10.7 WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS**.** To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
11. Additional Provisions
11.2 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms.
11.3 Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. the Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
11.4 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
11.5 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
11.6 Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
11.7 Force Majeure. We shall not be liable for any delay or failure to comply with our obligations under these Terms if the delay or failure arises out of or is caused by, directly or indirectly, forces beyond our reasonable control, including, without limitation, strikes, accidents, acts of war or terrorism, pandemics, epidemics, civil or military disturbances, nuclear or natural disasters, acts of God, interruptions and loss or malfunctions of utilities, communications or computer services.
11.8 Electronic Contracts. In accordance with applicable regulations, contracts entered into electronically shall produce all effects provided by law when the consent and other requirements necessary for their validity are met. In any case, the electronic support in which these Terms are contained, will be admissible as documentary evidence in case of dispute between the parties. It will be understood that the order process, including any payment, shall imply the consent required for this contract.
11.9 Governing Law. These Terms are entered into with the contracting entity and are governed by the laws and courts set forth in the following list depending on where you are located:
oEUROPEAN UNION INNENGINE CONTRACTING ENTITY: INNENGINE SL GOVERNING LAWS: THE LAWS OF SPAIN GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE COURTS LOCATED IN THE CITY OF MADRID
oUNITED STATES INNENGINE CONTRACTING ENTITY: INNENGINE USA LLC GOVERNING LAWS: THE LAWS OF THE STATE OF DELAWARE GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE COURTS LOCATED IN THE STATE OF DELAWARE
oCANADA INNENGINE CONTRACTING ENTITY: INNENGINE CA LTD GOVERNING LAWS: THE LAWS OF THE PROVINCE OF ONTARIO, CANADA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE PROVINCIAL OR FEDERAL COURTS LOCATED IN TORONTO, ONTARIO, CANADA
oAUSTRALIA INNENGINE CONTRACTING ENTITY: INNENGINE AUS PTY LLC GOVERNING LAWS: THE LAWS OF NEW SOUTH WALES GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE COURTS OF NEW SOUTH WALES
oNEW ZEALAND INNENGINE CONTRACTING ENTITY: INNENGINE NZ LIMITED GOVERNING LAWS: THE LAWS OF NEW ZEALAND GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE COURTS OF NEW ZEALAND
oREST OF WORLD INNENGINE CONTRACTING ENTITY: INNENGINE SL GOVERNING LAWS: THE LAWS OF SPAIN GOVERNING COURTS (TO THE EXTENT ARBITRATION DOES NOT APPLY): THE COURTS LOCATED IN THE CITY OF MADRID
By virtue of the provisions of Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on the resolution of online consumer disputes, the Company informs you that, in the event of a dispute, the user resident in the European Union may use the “Online Platform for Dispute Resolution” developed by the European Commission, in order to attempt to resolve out-of-court any dispute arising from the provision of services by INNengine. To access the “Online Dispute Resolution Platform” you can do so through the following link: http://ec.europa.eu/consumers/odr/.
11.10 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
11.11 How to Contact Us. You may contact us regarding the Services or these Terms at: Camino bajo de Huetor 33, 3A, 18008, Granada, Spain or by e-mail at email@example.com.