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The Bear Den Terms of Service Agreement
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New Terms of Use
Effective Date: November 14, 2017
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Introduction
Thank you for visiting a website, mobile app or other online service (“Service”) that belongs to and is operated by Henkel Corporation or one of its subsidiary or affiliated companies ("Henkel", “Us”, “We”, “Our”).
These Terms of Use (“Terms”) affect your legal rights, responsibilities and obligations and govern your use of the Service, are legally binding, limit Henkel’s liability to you and require you to indemnify us and, in certain jurisdictions, to settle certain disputes through individual arbitration.
By visiting or otherwise using the Service in any manner, you agree to the then posted Terms and any applicable Additional Terms (defined below), to be bound by them, and that you have read and understood them. You also acknowledge, agree and consent to Our data practices as described in Our Privacy Statement.
If you do not wish to be bound by these Terms and any Additional Terms, do not use the Service and uninstall Service downloads and applications.
Additional Terms
In some instances, additional or different terms, posted on the Service, apply to your use of certain parts of the Service (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, these Terms will control unless the Additional Terms expressly state otherwise.
Updates to these Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Service as more fully explained [Section 13].
Full Terms of Use
1. Ownership and Operation
The Service and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by Henkel, Our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Service is the property of Henkel, Our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Henkel owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service. Henkel, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Service and/or content (and any elements and features of them), in whole or in part, for any reason, in Henkel’s sole discretion, and without advance notice or liability.
2. Intended Geographic Scope
The Service and its Content are controlled from within the United States of America and Canada. Access to the Service from territories where its Content is illegal is prohibited. Those who choose to access the Service from outside the United States and Canada are responsible for compliance with all local laws applicable to them with respect to the Content and operation of the Service. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. and Canadian law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. and/or Canadian export controls or sanctions.
The brands / products shown on the Service are examples of the brands / products available from companies of Henkel worldwide. Henkel does not warrant that a brand / product shown is also available in your country.
3. Privacy
By visiting or otherwise using the Service in any manner, you agree to the then posted Privacy Statement and consent to data practices as described therein.
4. Limited Permission to Access and Use the Service
It is Henkel policy to enforce its Intellectual Property rights to the fullest extent of the law, including seeking criminal sanctions. Your right to use the Service and Content is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the Service and the Intellectual Property shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by Us at any time in our sole discretion without advance notice or liability. As your right to access and use the Service and the content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “Henkel Licensed Elements”):
A. Display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
B. Stream the Content using any of the widgets and/or other digital streaming internet video players, if any, provided on the Service;
C. Subject to any applicable Additional Terms, if the Service includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes content, or to post Our content to Third-Party Services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on Us, and only send to recipients you have permission to contact;
D. If the Service includes a “Download” link next to a piece of content (including, without limitation, an image, an icon, a wallpaper, a music track, a video, a trailer, an RSS feed), you may only download a single copy of such content to a single Device;
E. Download, install and use one copy of any software, including apps, that We make available on or through the Service (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; provided, however, that you understand and agree that (i) by allowing you to download the Software, Henkel does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software's owner (which may be Henkel and/or its third-party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software, except as expressly authorized in these Terms or applicable Additional Terms, without the prior written consent of Henkel: (iii) you may not assign, rent, lease, or lend the Software to any person or entity and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law;
F. If made available to you, obtain a registered personal account (and/or related username and password) on the Service and interact with the Service in connection therewith;
G. Link to the Service from a website or other online service, so long as: (a) the links only incorporate text, and do not use any Henkel names, logos, or images, (b) the links and the content on your website do not suggest any affiliation with Henkel or cause any other confusion, and (c) the links and the content on your website do not portray Henkel or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to Henkel. Henkel reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party, and;
H. Use any other functionality expressly provided by Henkel on or through the Service for use by users, subject to these Terms (including, without limitation, functionality to create and/or post User-Generated Content (as defined below)) and any applicable Additional Terms.
Any unauthorized use or abuse of these intellectual property or works is expressly prohibited and constitutes a violation of trademark law, copyright law, other intellectual property rights or unfair competition law.
5. Service and Content Restrictions
A. Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to Henkel; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service by any means whatsoever or modify any Service source or object code or any Software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Henkel, or other users of the Service; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the UGC; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) will keep intact all trademark, copyright, and other Intellectual Property and other notices contained in such content; (iv) will not use such content in a manner that suggests an unauthorized association with any of Our or Our licensors’ products, services, or brands; (v) will not make any modifications to such content (other than to the extent of your specifically permitted by Us, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Henkel or, in the case of content from a licensor, the owner of the content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience or the Service.
6. User-Generated Content
A. General. Henkel may now, or in the future, offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service, or on or in response to Our pages or posts on any third-party platforms or in connection with any of Our promotions by any media or manner, or otherwise submit to Us (e.g., on Our Facebook or other social media pages, in response to Our tweets, through a sweepstakes or contest, or by otherwise sending it to Us) (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Henkel Licensed Elements included therein, “User-Generated Content” or “UGC”). You may submit UGC through your profile, forums, blogs, message boards, social networking environments, content creation and posting tools, gameplay, social communities, contact Us tools, email, and other communications functionality. Except to the extent of the rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest that you have in your UGC.
B. Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Service’s posted Privacy Statement, or any applicable Additional Terms, you agree that (a) your UGC will be treated as non-confidential and non-proprietary by Us – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, Henkel does not assume any obligation of any kind to you or any third-party with respect to your UGC. Upon request, you will provide documentation necessary to authenticate rights to such content and verify your compliance with these Terms or any applicable Additional Terms. You acknowledge that the Internet and mobile communications may be insecure and subject to breaches of security; according, you acknowledge and agree that your UGC is submitted at your own risk.
In your communications with Henkel, please keep in mind that We do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed UGC and licensed to Us as set forth below. In addition, Henkel retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Henkel’s receipt of your Unsolicited Ideas and Materials is not an admission by Henkel of their novelty, priority, or originality, and it does not impair Henkel’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
C. License to Henkel of Your UGC. Except as otherwise described in any applicable Additional Terms (such as a promotion’s official rules), which specifically govern the submission of your UGC, or in Our Privacy Statement, you hereby grant Henkel the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such UGC and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Henkel to your UGC, you also, as permitted by applicable law, hereby grant to Henkel and agree to grant to Henkel the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any UGC, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution, anonymity, and integrity) that you may have in any UGC, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 6(c).
D. Henkel’s Exclusive Right to Manage Our Service. Henkel may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and Henkel may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of UGC without notice or any liability to you or any third-party in connection with Our operation of UGC venues in an appropriate manner. Without limitation, We may do so to address content that comes to Our attention that We believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such UGC submitted by you or others need not be maintained on the Service by Us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Service or elsewhere, except that California minors have certain rights to have certain content about them that they have themselves posted on the Service prospectively removed from public display as provided for in the Privacy Statement.
E. Representations and Warranties Related to Your UGC. Each time you submit any UGC, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any UGC you submit, and that, as to that UGC, (a) you are the sole author and owner of the intellectual property and other rights to the UGC, or you have a lawful right to submit the UGC and grant Henkel the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any Henkel obligation to obtain consent of any third-party and without creating any obligation or liability of Henkel (b) the UGC is accurate; (c) the UGC does not and, as to Henkel’s permitted uses and exploitation set forth in these Terms, will not, infringe any intellectual property or other right of any third-party or any applicable law or regulation; and (d) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
F. Enforcement. Henkel has no obligation to monitor or enforce your Intellectual Property rights to your UGC, but you grant Us the right to protect and enforce Our rights to your UGC, including initiating actions in your name and on your behalf (at Henkel’s cost and expense, to which you hereby consent and irrevocably appoint Henkel as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
7. DMCA Copyright Policy and Copyright Agent
Henkel respects the Intellectual Property rights of others and expects users of its Service to do the same. Henkel may remove content that in its sole discretion appears to infringe the Intellectual Property rights of others. In addition, Henkel, in its sole and absolute discretion, may terminate the accounts of users who infringe the Intellectual Property rights of others.
If you believe that a user of the Service has infringed your copyright rights, please notify Henkel’s Copyright Agent (contact information below) and provide the following information: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright right; (b) an identification of the copyright protected property claimed to have been infringed; (c) a detailed description of the material that you claim is infringing, so that We may locate it, including the URL where the infringing material appears; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the foregoing information is accurate and that you are authorized to act on behalf of the owner of the copyright(s) involved.
Copyright Agent
Henkel Corporation
One Henkel Way
Rocky Hill, CT 06067
860/571-2661
CopyrightAgent@henkel.com
8. Links and Third-Party Services
We are not responsible for third parties or their content, advertisement(s), apps or sites (“Third-Party Services”). For instance, portions of the Service may be integrated into or linked to third-party sites, platforms and apps that We do not control. Similarly, We may make ads and third-party content or services, which We also may not control, available to you on or via Our Service. This may include the ability to register or sign in to Our Services using Facebook Connect or other third-party tools, and to post content on third-party sites and services using their plug-ins made available on Our Services. Use caution when dealing with third parties and consult their terms of use and privacy policies. We take no responsibility for Third-Party Services. In addition, while Henkel may provide you with a link to a third party web site, it is understood that Henkel does not endorse, approve, sponsor or support such sites.
If you are accessing or using the Service through Apple, Android, or any other platform, these are Third-Party Services. If you access Our Apps via Apple, click here for Additional Terms and conditions that are applicable to you and are incorporated into the Terms by this reference.
9. Disclaimer of Warranties
We strive to accurately describe Our products or services offered on the Service; however, We do not warrant that such specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free and products may not be available in all areas. For online orders, if available, Additional Terms apply.
AS PERMITTED BY APPLICABLE LAW, THE MATERIALS AND INFORMATION ON THE SERVICE, AND ANY MATERIALS MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED "AS IS", “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HENKEL AND ITS DIRECT AND INDIRECT PARENTS, SUBSIDIARIES, AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, “HENKEL PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
AS PERMITTED BY APPLICABLE LAW, HENKEL PARTIES DISCLAIM ALL LIABILITY AND ASSUME NO RESPONSIBILITY FOR THE RESULTS OF ANY DEFECTS OR INACCURACIES THAT MAY EXIST IN THE SERVICE OR FROM ITS OPERATION. HENKEL MAKES NO WARRANTY THAT (I) THE OPERATION OF THE SERVICE WILL MEET THE USER´S REQUIREMENTS; (II) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR BE FREE OF DEFECTS OR ERRORS; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (IV) DEFECTS WILL BE CORRECTED. YOU (AND NOT HENKEL) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR ANY OTHER PROBLEMS WHATSOEVER YOU MAY HAVE AS A RESULT OF VISITING THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY HENKEL OR ITS SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY HENKEL, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) HENKEL PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY HENKEL PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST HENKEL PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
10. Limitation of Liability
AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, SHALL HENKEL PARTIES BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR PROFIT, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE OR ANY MATERIALS IN THE SERVICE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICE OR INFORMATION AVAILABLE IN THE SERVICE. THESE INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT. INCLUDING FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. AS PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A HENKEL PARTIES’ TOTAL LIABILITY TO YOU FOR DAMAGES, LOSSES, AND/OR CAUSES OF ACTION ARISING OUT OF THE SERVICE EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100), OR THE AMOUNT YOU HAVE PAID HENKEL IN CONNECTION WITH A PRODUCT OR SERVICE UNDERLYING THE CLAIM, AND ANY CLAIM OR CAUSE OF ACTION YOU MAY HAVE WITH RESPECT TO THE SERVICE (INCLUDING BUT NOT LIMITED TO THE PURCHASE OF HENKEL PRODUCTS) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY HENKEL OR ITS SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY HENKEL TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) HENKEL PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY HENKEL PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST HENKEL PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
11. Arbitration and Dispute Terms
A. Forum Selection/Jurisdiction. For users for are not individual residents of the province of Quebec, Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Service, the Content, your UGC, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Wilmington, Delaware. Each party submits to personal jurisdiction and venue in Wilmington, Delaware for any and all purposes.
B. Pre-Arbitration Notification. Henkel and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that Henkel need not do so in circumstances where its claims of Intellectual Property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or Henkel – shall send a letter to the other side briefly summarizing the claim and the request for relief. If Henkel is making a claim, the letter shall be sent, via email, to the email address listed in your Henkel account, if applicable. If no such information exists or if such information is not current, then We have no notification or delay obligations under this Section 11(b). If you are making a claim, the letter shall be sent to Henkel Corporation, One Henkel Way, Rocky Hill, CT 06067 (Attn: General Counsel). If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 11, or permitted by the applicable law. Either you or Henkel however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 11(d)) before the expiration of this sixty (60)-day period.
C. Arbitration of Claims. As permitted by applicable law, and for users who are not individual residents of the province of Quebec, all actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Delaware before a single arbitrator. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in the state of Delaware or, if sought by Henkel such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the courts in Wilmington, Delaware or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.
D. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE SERVICE, OR ANY ASPECT THEREOF, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY HENKEL PARTY (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY HENKEL PARTY.
E. Governing Law. For users for are not individual residents of the province of Quebec, these Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against Henkel or by Henkel against you pursuant to this Section 11, or otherwise related to the Service, Content, Henkel Licensed Elements, UGC or other Henkel products or services, will be governed by, construed, and resolved in accordance with, the laws of the State of Delaware, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 11 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and Henkel agree that We intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 11 can only be amended by mutual agreement. Either party may seek enforcement of this Section 11 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.
F. Class Action Waiver. As permitted by applicable law, and for users who are not individual residents of the province of Quebec, both you and Henkel waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 11 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
G. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 11(f).
I. Supersede. The provisions of this Section 11 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 11 shall remain in full force and effect notwithstanding any termination of your use of the Service or these Terms.
12. Downloaded Software
If you download software from the Service, the software and all files, images and data relating to the software is subject to the license terms in the software license that accompanies or is provided with the software. You may only use the software pursuant to the terms of such software license. You do not own the downloaded software, and Henkel does not transfer ownership of the software to you. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form.
13. Update to Terms
It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use this SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that We post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Service.
14. Forward-looking Statements
The Service may contain statements that involve Henkel´s intentions, expectations or predictions. Such statements reflect the views of Henkel as of the date made with respect to future events and are subject to risks and uncertainties. These statements could be inaccurate or could become inaccurate as a result of developments occurring after their respective dates. Henkel disclaims any intention or obligation to update or revise these statements.
15. Severability/No Waiver, Entire Agreement
If any provision of these Terms shall be found to 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. No failure on the part of Henkel to enforce these Terms shall constitute a waiver of any of Henkel´s rights under these Terms, whether for past or future actions on the part of any person. These Terms shall be the entire agreement between Henkel and you with respect to the subject matter hereto, and supersede all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Terms will be binding unless provided as an update by Henkel to this document, or signed in writing by an authorized officer of Henkel.
// End Terms Effective as of: September 19, 2017