Terms of Service

BIRDWIG LLC

Terms of Service

Last updated on April 23, 2018

These Terms of Service (this “Agreement”) constitute a legally binding contract between Birdwig LLC, a Colorado limited liability company with a place of business at 400 East 1st Avenue, Denver, CO 80203 (“Company,” “we,” “us,” “our”) and you with respect to your use of our websites, mobile applications and online services, including without limitation our website accessible at www.birdwig.com and www.corkaine.com (collectively, the “Service”).

BY ACCESSING OR USING THE SERVICEOR BY INDICATING YOUR ASSENT TO THIS AGREEMENT BY REGISTERING YOUR ACCOUNT, CLICKING “I ACCEPT,” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE, MAKE A PURCHASE USING THE SERVICE, OR REGISTER AN ACCOUNT WITH COMPANY.

Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.

Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Company have against each other are resolved (see Section 11 (Limitation of Liability), Section 15 (Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER), and Section 16 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 15(J). Unless you opt-out: (A) you will only be permitted to pursue claims against Company on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary, injunctive, and declaratory relief) on an individual basis. 

  1. Changes to this Agreement

We reserve the right to, at any time, with or without cause:

  • change the terms and conditions of this Agreement;
  • change the Service, including without limitation eliminating or discontinuing any service or other feature of the Service or using different URL(s) to provide the Service; and
  • deny or terminate your use of and/or access to the Service.

You must accept all changes in order to continue to use and access the Service. Your access to or use of the Service after such changes constitutes your agreement to such changes. We will attempt to notify you of any material changes to the terms and conditions of this Agreement. If you do not accept such changes, your use and/or access to the Service will be terminated.

  1. Use of the Service

Before using certain portions of the Service, you may need to register with Company and create an account to use the Service (an “Account”). We reserve the right to decline to provide the Service to any person for any or no reason. If and when you register with or provide information to Company, you agree to: (A) provide accurate, current, and complete information as prompted (including, without limitation, your contact information), and (B) maintain and update your information to keep it accurate, current, and complete. By providing Company with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including, without limitation, any notices required by any applicable law, statute, rule, ordinance, code, order or regulation of any government or quasi-government authority (“Applicable Law”).

You are solely responsible for the activity that occurs on your Account. You must keep your Account credentials (including username and password) secure at all times. You must notify Company immediately of any breach or suspected breach of security or unauthorized use of your Account. Company will not be liable for any losses caused by any unauthorized use of your Account.

You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.

  1. Rules Governing Your Use of the Service

You may not use the Service, or assist or encourage any other party to use the Service, to engage in any activity that Company deems objectionable, including without limitation any of the following prohibited activities:

  • Copying, framing or mirroring any part of the Service;
  • Accessing the Service for purposes of monitoring its availability, performance, or functionality;
  • Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, except to the extent expressly permitted or required by Applicable Law provided that you first give prior written notice to Company;
  • Publishing, transmitting, distributing or storing content, material, information or data that: (A) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (B) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (C) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights, including without limitation copyrights, patents, trademarks, trade secrets or other intellectual property or proprietary right (including without limitation unauthorized use of domain names); or (D) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);
  • Attempting to disrupt, degrade, impair or violate the integrity or security of the Service or the computers, services, accounts or networks of any other party (including without limitation “hacking,” “denial of service” attacks, etc.), including without limitation any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Company internet protocol space;
  • Distributing or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
  • Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Company than a human can reasonably produce in the same period of time by using a conventional web browser;
  • Taking any action that imposes, or may impose, as we determine in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
  • Collecting or harvesting any personally identifiable information, including without limitation account names or information about users of the Service, from the Service;
  • Using the Service for any commercial solicitation purposes;
  • Accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
  • Submitting to the Service or to Company any personally identifiable information or any other information that may be protected from disclosure by Applicable Law, except as necessary for the establishment and operation of your Account;
  • Bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
  • Violating any Applicable Law or encouraging any conduct that could lead to such a violation, constitute a criminal offense or give rise to civil liability;
  • Removing any copyright, trademark or other proprietary or intellectual property right notices contained in or on the Service; and/or
  • Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.

 Improper use of the Service may result in civil or criminal liabilities. 

  1. Intellectual Property

A. Your Rights. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. Company reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.

B. Company Rights.

  • User Content License. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, fully paid-up, fully sublicensable (through multiple tiers of sublicensees), fully transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, distribute, modify, reproduce, publically display, publically perform and create derivative works of all information, data, materials, and content you provide to Company (including without limitation any and all Likeness (as defined below), software, data, scripts, headers, icons, buttons, hashtags, marks, dress, text, photos, pictures, graphics, images, audio or video clips, logos, icons, links and any portion, selection, compilation or arrangement thereof) (collectively, “User Content”), and Company will be free to use and exploit such User Content without obligation or liability to you, financial or otherwise, for the purposes of (i) providing the Service, (ii) marketing, selling or otherwise providing products and services using the Service, or (iii) developing, maintaining, supporting or improving the Service. You agree that all User Content is non-confidential and may be used, collected, stored, shared, or otherwise exploited by us or on our behalf without limitation (except as expressly set forth in our https://www.corkaine.com/pages/privacy-policy including without limitation in order to provide the Service. Company aggregates User Content with other data and also collects technical information and data about your use of the Service. You expressly agree that Company may use any aggregated and anonymized data for any purpose during or after the term of this Agreement, including without limitation to develop and improve the Service or otherwise develop and improve Company services and products. As used in this Agreement, a “Likeness” means any and all trademarks, trade names, brands, logos, and social media handles of or that depict any person or entity, any person’s or entity’s names, nicknames, initials, fame, autograph, voice, likeness, image, and facsimile image, and any other representation of, or means of endorsement by, any person or entity.

C. Proprietary Rights. The Service is owned and operated by Company, and the Service (and all intellectual property and other rights relating thereto) is and will remain the property of Company. The Service is protected by U.S. and international copyright, trademark and other Applicable Laws, and you acknowledge that these rights are valid and enforceable. The Service may be used by you solely to the extent expressly permitted in this Agreement. Use of the Service by you for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, trade names, service marks, brands, logos, and trade dress displayed on the Service (collectively, the “Company Trademarks”) are the registered and unregistered intellectual and proprietary property of Company and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of Company or the third-party owner of any such Company Trademark.

D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the Service. Without limitation to the restrictions set forth in Section 3, you represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your User Content on or through the Service does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service; (iv) the User Content posted by you on or through the Service does and will comply with Applicable Law; and (v) the User Content posted by you on or through the Service will not be abusive, defamatory, obscene, threatening, repetitive or otherwise inappropriate or contain any virus or other software that may adversely affect the operation of another’s computer. You agree that Company is not responsible for, and does not endorse, User Content posted within the Service. Company does not have any obligation to prescreen, monitor, edit or remove any User Content. If your User Content violates this Agreement, you will bear legal responsibility for that User Content. As between you and Company, any User Content will be non-confidential and non-proprietary, and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with Company is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place Company in a position that is any different from the position held by members of the general public, including without limitation with regard to your User Content. None of your User Content will be subject to any obligation of confidence on the part of Company, and Company will not be liable for any use or disclosure of any User Content you provide.

E. Reporting Copyright and Other IP Violations. The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Company reviews claims of trademark infringement. If you believe in good faith that materials hosted by Company infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed or that access to it be blocked. The notice must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work or trademark claimed to have been infringed on (or, if multiple copyrighted works or trademarks located on the Service are covered by a single notification, a representative list of such works); (iii) identification of the material that is claimed to be infringing or the subject of infringing activity and information reasonably sufficient to allow Company to locate the material on the Service; (iv) the name, address, telephone number, and e-mail address (if available) of the complaining party; (v) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent or Applicable Law; and (vi) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that Company will not respond to complaints that do not meet these requirements. If Company determines that the materials alleged to infringe your copyright or trademark rights do not require removal, Company will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (i) your name, address, and telephone number; (ii) the source of the content that was removed; (iii) a statement under penalty of perjury that you have a good-faith belief that the content was removed in error; (iv) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which Company may be found, and that you will accept service of process from the person who provided the original complaint; and (v) a physical or electronic signature (for example, typing your full name).

Notices and counter-notices with respect to the Service must meet the then-current statutory requirements imposed by the DMCA (see http://copyright.gov/title17/92appb.html) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.

Agent to receive notices of claimed infringement:

Andrew Restivo 5019 River Road, Harahan, LA 70123 legal@birdwig.com 504-655-5965
  1. Third-Party Links

The Service may contain links to other websites for your convenience. We do not control the linked websites or the content provided through such websites, and we have not reviewed such websites. Your use of linked websites is subject to the privacy policies and terms of use established by the specific linked website, and we disclaim all liability for such use. The fact that we offer such links does not indicate any approval or endorsement by us of any linked website or any material contained on any linked website, and we disclaim any such approval or endorsement.

  1. Competency

You hereby affirm that you are at least 18 years old and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement.

  1. Privacy Policy

Your use of the Service shall be subject to Company’s Privacy Policy (the “Privacy Policy”), which can be accessed at: https://www.corkaine.com/pages/privacy-policy You expressly consent to the practices described in the Privacy Policy. Company reserves the right to modify the Privacy Policy in its discretion from time to time. Access to or use of the Service after any such changes shall constitute your agreement to such changes.

  1. Term & Termination

This Agreement is effective from the date on which you first access the Service, create an Account or submit any User Content to Company, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Company may immediately terminate this Agreement, and/or your access to and/or use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Company may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement, your right to access and use the Service shall immediately cease and you shall cease all access to and use of the Service. In the event of termination of this Agreement for any reason, all of your payment obligations and Sections 1, 2, 3, 4(B)-(E), and 5–17 shall survive, except that you shall no longer have any right to access or use the Service.

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate Company to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.

  1. Product Suitability

Many states and localities have Applicable Laws governing sales, receipt and/or use of Products for certain purposes. Company cannot guarantee compliance and cannot be responsible for how the Product is received or used. Before purchase, receipt and/or use of any Product, please review such Applicable Laws to be sure that the Product, and receipt and use thereof, will comply with such Applicable Laws.

  1. Disclaimers

THE SERVICE AND PRODUCTS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, OR ANY INFORMATION, MATERIAL, OR CONTENT ACCESSIBLE USING THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON.

  1. Limitation of Liability

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER COMPANY NOR ANY OF ITS AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, PRODUCTS, OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

  1. Indemnification

You agree to fully indemnify, defend (at Company’s request), and hold harmless Company, our agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “Company Parties”) from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (A) your actual or alleged breach of this Agreement; (B) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other right of any third party; (C) your activities in connection with the Service or any other website to which the Service is linked; (D) your negligence or willful misconduct; (E) your use of the results, content, data, or information provided via the Service; (F) any service or product offered by you in connection with or related to your use of the Service; and/or (G) your violation of any Applicable Law.

  1. Jurisdictional Issues

Company makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk and that you are solely responsible for compliance with all Applicable Laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement or your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.

  1. Notice for California Users

Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

  1. Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER

A. Binding Arbitration. You and Company both agree that any and all disputes or claims arising out of or relating in any way to Company products or services, including without limitation Products, or from any advertising for any such products or services, including without limitation any question regarding the existence, validity, or termination of the Agreement as well as any issue regarding the interpretation of this Section 15, will be resolved by binding arbitration before a sole arbitrator (rather than in court), except that you may assert claims in small claims court if your claims qualify and Company may pursue a collection action against you in court. This also includes any claims that arose before you accepted the Agreement, regardless of whether prior versions of the Agreement required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.

B. Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including without limitation injunctive and declaratory relief or statutory damages) and must follow the terms of the Agreement as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.

C. Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to Company, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: 400 East 1st Avenue, Denver, CO 80203 (“Notice Address”). You may download or copy a form Notice at www.adr.org. If Company and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court.

D. Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.

E. Consumer Arbitration Rules. The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by the terms of the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Agreement and the AAA Consumer Arbitration Rules, the terms of the Agreement will apply.

F. Fees. Each party will bear its own fees in connection with the arbitration, including without limitation the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.

G. Hearings. If your claim is for US$25,000 or less, you and Company agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in Denver County, Colorado.

H. No Class Action. You and Company agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor Company may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 15 shall be null and void.

I. Confidentiality. Any arbitration will be confidential. Neither you, Company, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcing or challenging of the arbitration award.

J. Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to Company at the Notice Address no later than thirty (30) calendar days from the date of your purchase of Company products or services (or date of first use, in the case of free products or services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of the Agreement or your ability to purchase or use Company products or services in any way.

K. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Company and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred. 

  1. Choice of Law and Forum

Without limiting Section 15 this Agreement and your relationship with Company Parties shall be governed by, and construed and interpreted in accordance with, the Federal Arbitration Act, applicable federal law, and the laws of the State of Colorado without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 15, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Denver County, Colorado, and you consent to the exclusive jurisdiction of the federal or state courts located in Denver County, Colorado.

  1. Miscellaneous

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by Company posting such changes, waivers or modifications within the Services. If any employee of Company offers to modify this Agreement, he or she is not acting as an agent for Company or speaking on Company’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Company or anyone else purporting to act on Company’s behalf. This Agreement is between you and Company; there are no third-party beneficiaries. You are responsible for compliance with all Applicable Laws, including without limitation United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with Company’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Company may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. Company shall not be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure result from events, circumstances or causes beyond its reasonable control. 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. Except as explicitly stated otherwise, legal notices shall be served, in the case of Company, at 400 East 1st Avenue, Denver, CO 80203, Attention: Chief Executive Officer or, in your case, to contact information you choose to provide us. Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

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