Last Revised: [01/25/2024]
The following terms and conditions of service (the “Terms of Service”) constitutes a binding agreement between youand Kendrick Trade, LLC (“Kendrick Trade,” “us” or “we”), with respect to your use of our website(https://www.kendricktrade.com/) (“Site”), and the services available on the Site, including any Content (as definedin Section 6 below) (collectively, the Site, services available on the Site, and Content are hereinafter referred to asthe “Offerings”).
BY ACCESSING THE SITE OR USING THE OFFERINGS IN ANY MANNER (WHETHER AUTOMATED OROTHERWISE), YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND ACKNOWLEDGETHESE TERMS OF SERVICE AND OUR PRIVACY NOTICE, WHICH IS INCORPORATED HEREINBY REFERENCE, AND (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THEAGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE). IF YOU DO NOT AGREE TO THESETERMS OF SERVICE, DO NOT ACCESS THE SITE OR USE THE OFFERINGS.
THESE TERMS OF SERVICE INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANSTHAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE OFFERINGS, THESE TERMS OF SERVICE,AND/OR OUR PRIVACY NOTICE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING INCOURT. THESE TERMS OF SERVICE INCLUDE A JURY AND CLASS ACTION WAIVER, WHICH MEANSTHAT YOU AGREE TO PROCEED WITH ANY DISPUTE (THAT IS NOT SUBJECT TO MANDATORYARBITRATION) WITH A JUDGE AND ON AN INDIVIDUAL BASIS AND NOT AS PART OF A CLASS ACTION.MORE INFORMATION ABOUT THE JURY AND CLASS ACTION WAIVER CAN BE FOUND IN SECTION 12(DISPUTE RESOLUTION; JURISDICTION; AND CLASS ACTION WAIVER).
1. OFFERINGS. Kendrick Trade provides an online service for users of the Site that assists users’ analysis, subjectto these Terms of Service, of requirements for qualification and compliance under the United States-Mexico-Canada Agreement (“USMCA”). Once a user determines that a product/good qualifies under the USMCA, usersmay also use the tools on the Site to generate documentation to assist the user with compliance under theUSMCA.
1.1. Use and Restrictions. Subject to these Terms of Service, Kendrick Trade hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Offerings for your personal, internal commercial use to assist in qualification analysis for the USMCA. We reserve all rights not expressly granted to you under these Terms of Service. In connection with you use of the Offerings, you agree not to:
- license, assign, distribute, sell, transfer, exploit or otherwise make available the Offerings;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Offerings, in whole or in part;
- access or use the Offerings for any unlawful purpose or beyond the scope of the rights granted;
- obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Offerings;
- “flood” the Offerings with requests or otherwise use the Offerings in any manner that would disable, disrupt, impair, harm, or overburden the Offerings or our systems; or
- collect information from the Offerings using an automated software tool or manually on a mass basis.
In connection with the foregoing, you are expressly forbidden from engaging in web scraping on the Site or utilizing its Content for the creation of machine learning models, artificial intelligence systems, or any related technology without obtaining explicit written consent from Kendrick Trade. Web scraping, as defined herein, encompasses the use of robots, spiders, scripts, services, software, or any manual or automatic tools designed for data mining or extracting content, data, or information from this website, or any automated means of accessing or collecting such content, data, or information.
1.2. Changes to the Offerings. We may, from time to time in our sole discretion, develop and provide updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features to our Offerings (collectively, “Updates”), and such Updates will be subject to these Terms of Service. Updates may also modify or discontinue certain features and functionality of the Offerings. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Offerings, including, without limitation, changes to pricing, the addition of free or fee-based services, or changes to limitations on data requirements, file sizes or file types, with or without notice to you. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionalities of the Offerings. We reserve the right to make changes to, suspend, or discontinue (temporarily or permanently) the Offerings or any portion thereof (including Content) at any time. You agree we will not be liable to you or to any third party for any such change, suspension, or discontinuance.
1.3. No Guarantee; Temporary Interruptions. We work hard to provide quality Offerings; however, you understand and acknowledge that we do not promise or guarantee specific results from using the Offerings. You understand and agree that temporary interruptions of the Offerings may occur due to events that are out of our control. You also understand and agree that we have no control over the third-party networks or service(s)that we may use to provide you with Offerings.
1.4. Access. You are responsible for all applicable taxes, data plans, internet fees, and other fees associated with your access and use of the Offerings.
2. ACCOUNT REGISTRATION.
2.1. Login Required. In order to access some of the Offerings, you may be required to set up an account and password on the Site. Our account registration page requests certain personal information from you(“Registration Info”). You will have the ability to maintain and periodically update your Registration Info as you see fit. By creating an account on the Site, you agree that all information provided by you as Registration Info is true and accurate and that you will maintain and update this information as required in order to keep it current, complete and accurate.
2.2. Passwords and Security. If you register for an account on the Site, you agree that you are responsible for maintaining the security and confidentiality of your account information, including your username and password, and that you are fully responsible for all activities or charges that are incurred under your account. Therefore, you must take reasonable steps to ensure that others do not gain access to your account information, username, password and account. Our employees will never ask you for your password. You may not share your account or password with anyone or allow anyone else to access or use your account. You agree to immediately notify Kendrick Trade of any unauthorized access to or use of your account, or any other breach of security. We are not responsible or liable for any loss or damage arising from your failure to protect your account information, including your username or password.
3. PAYMENT AND BILLING. If you choose to purchase one or more of the Offerings provided on our Site, you agree to pay all fees associated with such Offerings.
3.1. Charges. Kendrick Trade does not process credit or debit cards or collect any payment processing information. If you decide to purchase any of our Offerings, the purchasing process will automatically direct you to our third-party payment processor’s website to complete the payment transaction.
3.2. Overdue Amounts. If, for any reason, your payment card company declines or otherwise refuses to pay the amount owed for the Offerings you have purchased, you agree that we may, at our option, suspend or terminate performance of Offerings or your access to your account and may require you to pay any overdue amounts incurred (including any third-party chargeback fees or penalties) by other means acceptable to us. If legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorneys’ fees and legal expenses.
4. OTHER TERMS & CONDITIONS. Any other policies, rules, or guidelines that may be applicable to specific portions or features of the Offerings, including those referenced in these Terms of Service, are incorporated into these Terms of Service by this reference. If you violate Kendrick Trade’s policies, including these Terms of Service or any other policies on the Site then Kendrick Trade, it its sole discretion, may suspend or terminate your access to your account without refund for any purchases made under such account, and Kendrick Trade reserves the right to delete any User Data and Output (as defined below) associated with such account without liability to you.
5. USER DATA.
5.1. General. To use certain Offerings, you must upload information to the Site through your account, including, without limitation, bills of materials, numerical value of good, country of origin for materials and finished good, name of producer, description of product, part number, currency of import, description of material or finished good, and Harmonized Tariff Schedule (HTS) (collectively, “User Data”). We may use the User Data in accordance with these Terms of Service and our Privacy Notice to provide certain features of the Offerings. Subject to our Privacy Notice, User Data or any communication or material that you transmit to us, whether by email or other means, for any reason, will be treated as non-confidential and non-proprietary information. While you retain all rights to the User Data provided through your account, you grant us (including our employees and affiliates) a non-exclusive, paid-up, perpetual, and worldwide right to collect, copy, distribute, display, modify, process, store, translate, and otherwise use the User Data for any purpose to provide and improve the Offerings, regardless of the form or medium in which it is used.
5.2. Obligations. Your use of the Offerings is subject to all applicable laws and regulations, and you are solely responsible for any User Data you upload or otherwise transmit to us. You must maintain a copy of all User Data that you upload to the Site or otherwise provide to us. By uploading or transmitting User Data to the Site, you agree that you will not upload or transmit User Data that:
- contains fabricated, false, inaccurate, incomplete, or invalid data elements;
- is unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, tortious, invasive of another’s privacy, or includes graphic descriptions of sexual or violent content;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
- consists of unsolicited advertising, junk or bulk email (also known as “spam”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- contains any form of malicious code, files, or programs that are designed or intended to disrupt, damage, or limit the functionality of any software, hardware, or telecommunications equipment or otherwise causes damage, or allows you to obtain unauthorized access to any data or other information of any third party; or
- breaches the security of, compromises or otherwise allows access to secured, protected or inaccessible areas of the Site, or attempts to gain access to other network or server via your account on the Site.
5.3. Output. Any certificates, documents, reports, or other output obtained through your use of the Offerings(collectively, “Output”) is based solely on the User Data you submit through your account. You acknowledge and agree that we have no obligation to preview, monitor, or screen any User Data and have no liability for any errors or omissions contained in any Output. You are solely responsible for verifying User Data and Output and for your reliance on any information contained in any Output. You are solely responsible for downloading and maintaining any Output obtained through your use of the Offerings.
KENDRICK TRADE DOES NOT PROVIDE LEGAL ADVICE OR OPINIONS ON COMPLIANCE WITHLAWS OR REGULATIONS. ANY AND ALL INFORMATION OBTAINED FROM THE OFFERINGS ISMADE AVAILABLE SOLELY FOR THE PURPOSE OF ASSISTING YOU TO MAKE INDEPENDENTASSESSMENTS AND DECISIONS. KENDRICK TRADE SHALL NOT BE LIABLE FOR ANY CLAIMS,DAMAGES, OR LOSSES RESULTING FROM OR IN CONNECTION WITH YOUR USE OFINFORMATION OBTAINED FROM THE OFFERINGS.
5.4. User Data Warranty. You represent and warrant to Kendrick Trade that you own or control all rights in and to the User Data you upload to the Site or otherwise transmit to us and have the right to grant the rights above to us.
5.5. Deletion of User Data and Output. Subject to these Terms of Service, in no event do we keep data longer than 5 years. The first year your data is accessible by you through your account. Thereafter, your information is moved to a secure deep archive for 4 years and deleted 4 years after the date it is moved to the archive.
5.6. Feedback. Any ideas or suggestions (“Feedback”) that you provide to us about the Offerings are entirely voluntary, and you understand and agree that we may or may not use the Feedback for any purpose without compensation or other liability to you.
6. THIRD-PARTY WEBSITES. This Site may redirect or link to other websites on the Internet, or may otherwise include references to information, products or services made available by unaffiliated third parties. While we make every effort to work with trusted, reputable providers, from time to time such sites may contain information, material or policies that some may find inappropriate or personally objectionable. You understand that we are not responsible for the accuracy, completeness, decency or legality of content hosted by third party websites, nor are we responsible for errors or omissions in any references made on those websites. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with the Site or third party by us, or any warranty of any kind, either express or implied.
7. COMPANY INTELLECTUAL PROPERTY. For purposes of these Terms of Service, “Content” is defined as any information, communications, software, published works, photos, video, graphics, music, sounds, or other material that can be viewed by users on our Site and is owned or licensed by Company. Content does not include User Data.
7.1. Ownership. The Offerings, including as between you and Kendrick Trade any Output exclusive of User Data contained in the Output, are the property of Kendrick Trade or its third-party licensors. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by downloading Content or Output or by making any purchases through the Site for any Offerings or Output. The Offerings and the Output are protected under applicable law and by any and all intellectual property and/or other proprietary rights.
All custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks of Kendrick Trade, LLC. All other trademarks or service marks are property of their respective owners. Nothing in these Terms of Service grants you any right to use any trademark, service mark, logo, and/or the name of Kendrick Trade.
7.2. Limitations on Use of Content. Except for a single copy made for personal use or internal commercial use, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any Content from the Offerings in any form or by any means whatsoever without prior written permission from us. The fore going restriction does not apply to Output used by you for its intended, legal purpose. Any unauthorized use of the Content violates our intellectual property interests and could result in criminal or civil penalties. You agree not to sell, resell, reproduce, duplicate, distribute, copy or use for any commercial purposes any portion of the Content, or use of, or access to, the Offerings.
7.3. No Warranty for Third-Party Infringement. We do not warrant or represent that your use of materials displayed on, or obtained through, the Offerings will not infringe the rights of third parties.
8. CONFIDENTIAL INFORMATION. As stated above, all communications sent by you to us, except for costed bills of material you submit to us through the Offerings, will be treated as non-confidential and non-proprietary (subject to our Privacy Notice). Please do not submit confidential or proprietary information to us (including patentable ideas, new content suggestions or business proposals) unless we have mutually agreed in writing otherwise. Ideas that we receive unsolicited will be treated as property owned by the Company and will not be returned to you.
9. DISCLAIMER. ALL OFFERINGS AND OUTPUT GENERATED BY THE OFFERINGS ARE PROVIDED ON AN“AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS ORIMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUTLIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE OFFERINGS OR OUTPUT WILLMEET YOUR REQUIREMENTS, (B) THE OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE, ORERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE OFFERINGS,INCLUDING, WITHOUT LIMITATION, ANY OUTPUT, WILL BE ACCURATE, COMPLETE, EFFECTIVE, ORRELIABLE, OR (D) THE QUALITY OF ANY OFFERINGS PURCHASED OR OBTAINED BY YOU FROM THESITE WILL MEET YOUR EXPECTATIONS OR BE FREE FROM DEFECTS, ERRORS, MISTAKES, VIRUSES,OR OTHER HARMFUL CODE. WITHOUT LIMITING THE FOREGOING, THE OFFERINGS AND/OR OUTPUTGENERATED BY THE OFFERINGS COULD INCLUDE TECHNICAL OR OTHER INACCURACIES,MISTAKES, OR TYPOGRAPHICAL ERRORS. THE CONTENT OR PRODUCTS AVAILABLE AT THIS SITEMAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH CONTENT OR PRODUCTS.
THE USE OF THE OFFERINGS OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY PART OFTHE OFFERINGS, INCLUDING THE CONTENT AND ANY OUTPUT, THROUGH THIS SITE IS DONE ATYOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELYRESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTSFROM SUCH ACTIVITIES.WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH A THIRD PARTY,OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCHTRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT ISPROVIDED IN CONNECTION WITH ANY OFFERINGS OR CONTENT AVAILABLE ON OR THROUGH THISSITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.
Some jurisdictions do not allow the exclusion of certain warranties, so some of the above limitations may not apply to you. Please consult the laws in your jurisdiction.
10. LIMITATION OF LIABILITY & INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALLKENDRICK TRADE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, ORSERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE,INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE,LOSS OF DATA, LOST BUSINESS, OR LOST PROFITS, WHETHER OR NOT WE HAVE BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY,ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE OFFERINGS OR OF ANY WEBSITEREFERENCED OR LINKED TO FROM THE OFFERINGS.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY PROMISES REGARDINGOUR OFFERINGS OR ANY OUTPUT OR FOR ASSISTANCE IN CONDUCTING COMMERCIALTRANSACTIONS WITH THE THIRD PARTY THROUGH THIS SITE.
Some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to you. Please consult the laws of your jurisdiction.
10.1. Limitation of Liability. The Offerings, including as between you and Kendrick Trade any Output exclusive of User Data contained in the Output, are the property of Kendrick Trade or its third-party licensors. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by downloading Content or Output or by making any purchases through the Site for any Offerings or Output. The Offerings and the Output are protected under applicable law and by any and all intellectual property and/or other proprietary rights.
10.2. Indemnification. You agree to defend and hold Kendrick Trade and our officers, directors, employees, agents, licensors, and service providers (“Indemnitees”) harmless from all claims, causes of action, or demands that may arise from: (a) your use or misuse of the Offerings or Output; (b) your violation of these Terms of Service; (c) your violation of applicable laws or regulations; or (d) User Data, and, in each case, you agree to indemnify the Indemnitees for all costs, damages, expenses, fines, liabilities, losses, and penalties (including attorneys’ fees) resulting from such claims, causes of action, or demands. Were serve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
11. TERMINATION OF USE.
You may terminate these Terms of Service at any time by deleting your account and discontinuing use of all of the Offerings. If you fail to delete your account, then you understand and agree that we may delete your account, including any User Data or Output associated with such account, due to prolonged inactivity without any liability to you and without notice.
At our sole discretion, we may terminate or suspend your access to all or part of the Offerings with or without notice and for any reason, including, without limitation, breach of these Terms of Service. Any suspected fraudulent, abusive or illegal activity may be grounds for barring your access to the Offerings, including your account (if applicable), and reporting you to the proper authorities, if necessary.
Upon termination and regardless of the reason(s) motivating such termination, your right to use the Offerings will immediately cease. We shall not be liable to you or any third party for any claims for damages arising out of any termination or suspension or any other actions taken by us in connection therewith. Sections 3, 5, and 7-13of these Terms of Service, as well as your liability for any unpaid fees, shall survive any termination.
12. DISPUTE RESOLUTION; JURISDICTION; AND CLASS ACTION WAIVER.
12.1. Dispute Resolution. PLEASE READ THESE TERMS CONCERNING DISPUTE RESOLUTIONCAREFULLY. THEY AFFECT YOUR RIGHTS AND IMPACT THE WAY THAT YOU AND WE BRINGCLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
12.1.1. Arbitration Agreement. YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM RELATING INANY WAY TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, OR FORMATIONOF THESE TERMS OF SERVICE OR YOUR USE OF THE OFFERINGS OR ANY OUTPUT WILLBE RESOLVED EXCLUSIVELY THOUGH FINAL AND BINDING ARBITRATION, RATHER THANIN COURT. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLYINTERPRETED AND INCLUDES ANY DISPUTE, CLAIM, OR CONTROVERSY BETWEEN YOUAND KENDRICK TRADE REGARDING ANY ASPECT OF YOUR RELATIONSHIP WITH US ORANY CONDUCT OR FAILURE TO ACT ON OUR PART, INCLUDING CLAIMS BASED ONBREACH OF CONTRACT, TORT (FOR EXAMPLE, A NEGLIGENCE OR PRODUCT LIABILITYCLAIM), VIOLATION OF LAW OR ANY CLAIMS BASED ON ANY OTHER THEORY, ANDINCLUDING THOSE BASED ON EVENTS THAT OCCURRED PRIOR TO THE DATE OF THISAGREEMENT, WITH THE FOLLOWING EXCEPTIONS:
- You may assert claims in your local small claims court if its rules permit it; and
- Any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court.
This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
12.1.2. Prohibition of Class Actions and Non-Individualized Relief. ANY ARBITRATION WILL BECONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS ACLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WEAGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THANONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANYFORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEYGENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF(INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OFTHE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TOPROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of this dispute resolution in this Section 12, other than Section 12.4 below, will be null and void and neither of us will be entitled to arbitrate our dispute.
12.1.3. Arbitration Rules. The arbitration will be administered by the American Arbitration Association(“AAA”) and will be governed by AAA’s Consumer Arbitration Rules (“AAA Rules”), as modified by these Terms of Service. The AAA Rules may be accessed at http://www.adr.org or by calling the AAA at 1-800-778-7879. Unless the parties agree otherwise, only one arbitrator is to be assigned to hear a case. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, and must enforce the same limitations stated in these Terms of Services as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or Kendrick Trade requests one. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.1.4. Demand for Arbitration. A party who intends to arbitrate (“Claimant”) must first send to the other party (“Respondent”) a written notice, entitled “Demand for Arbitration” (“Demand”). The Demand must: (i) briefly explain the dispute; (ii) provide the Claimant’s name and address, the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address(for Kendrick Trade, see below); (iii) specify the amount of money in dispute, if applicable; (iv) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (v)Page 8 of 4include a statement of what the Claimant wants. The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it and the then current filing fee required by the AAA. The Demand must be sent to the AAA at the following address:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
Alternatively, the Demand may be filed with the AAA online using AAA Web
File:https://www.adr.org.
Any Demand to Kendrick Trade should be addressed to:
Kendrick Trade, LLC12081 W. Alameda Pkwy #415
Lakewood, CO 80228
Attn: Manager, Kendrick Trade LLC
12.1.5. Filing Administration and Arbitrator Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Section 12.1. Each party shall bear its own costs, fees, and expenses incurred in connection with the arbitration proceeding, including but not limited to filing fees, attorney fees, and other administrative expenses and an equal share of the arbitrators’ and administrative fees of arbitration, regardless of the outcome of the arbitration.
12.1.6. Opt-Out Procedure. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATIONPROVISIONS IN THIS SECTION 12.1, YOU MUST NOTIFY KENDRICK TRADE IN WRITINGWITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS TERMS OF SERVICE FOR THEFIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO KENDRICK TRADEAT THE ADDRESS SET FORTH IN SUBSECTION 12.1.4 ABOVE. YOUR WRITTENNOTIFICATION TO KENDRICK TRADE MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, PHONE NUMBER AND A CLEAR STATEMENT THAT YOU DO NOT WISHTO RESOLVE DISPUTES WITH KENDRICK TRADE THROUGH ARBITRATION. IF YOU OPTOUT OF THE ARBITRATION PROVISIONS IN THIS SECTION 12, ALL OTHER PROVISIONSOF THIS TERMS OF USE WILL CONTINUE TO APPLY, INCLUDING SECTION 12.4, BELOW.
12.2. Amendment to Arbitration Provisions. Not with standing any provision in these Terms of Service to the contrary, you and we agree that if we make any amendment to the arbitration provisions in this Section12 in the future (other than an amendment to any notice address or site link provided herein) we will not if you through the email we have on file for you.
12.3. Venue and Procedure. The arbitration hearing shall be held in Denver, Colorado. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Incases where an in-person hearing is held, you and/or Kendrick Trade may attend by telephone, unless the arbitrator requires otherwise.
12.4. JURY TRIAL, GOVERNING LAW, AND CLASS ACTION WAIVER. IF FOR ANY REASON A CLAIM PROCEEDS IN COURTRATHER THAN IN ARBITRATION, YOU AND KENDRICK TRADE EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURYTRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THEOTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, ORREPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. THIS SECTION 12 SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13. MISCELLANEOUS PROVISIONS.
13.1. International Use. Although the Offerings may be accessible worldwide, we make no representation that the Offerings or any Output are appropriate or available for use in locations outside the United States. Those who choose to access the Offerings from other locations do so on their own initiative and at their own risk. If you choose to access the Offerings from outside the United States, you are responsible for compliance with local laws in your jurisdiction, including but not limited to, the taxation of products purchased over the Internet. Any offer for any product, service, and/or information made in connection with the Offerings is void where prohibited.
13.2. U.S. Export Controls. The Offerings may be subject to United States export laws, including the including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Offerings to, or make the Offerings accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, rules, and regulations, and complete all required undertakings(including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Offerings available outside the United States.
13.3. Notice to 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.
13.4. Notices. All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at customerservice@kendricktrade.com if by email, or to our address at Kendrick Trade, LLC, 12081 W. Alameda Pkwy #415, Lakewood, CO80228, Attn: Manager, Kendrick Trade, LLC. if by conventional mail. You agree to allow us to submit notices to you either through the email address provided, or to the address we have on record. Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (i) on the delivery date if delivered personally to the party; (ii) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (iii) five business days after the mailing date, if sent by U.S. mail, return receipt requested; (iv) on the delivery date if transmitted by confirmed facsimile; or (v) on the delivery date if transmitted by confirmed email.
13.5. No Resale Right. Except for any internal commercial use or as otherwise agreed by Kendrick Trade, you agree not to sell, resell, reproduce, duplicate, distribute, copy or use for any commercial purposes any portion of the Offerings, or use of or access to the Offerings provided, beyond the limited rights granted to you under Section 1.1 of these Terms of Service.
13.6. Force Majeure. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Offerings arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
13.7. Severability. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
13.8. No Waiver. Any failure by us to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision.
13.9. Entire Agreement. These terms and conditions constitute the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Service may NOT be altered, supplemented, or amended by the use of any other document(s). To the extent that anything in or associated with the Offerings is in conflict or inconsistent with these Terms of Service, these Terms of Service shall take precedence.
14. CHANGES TO TERMS OF SERVICE. The date these Terms of Service were last revised and updated is set forth at the top of this page. We may revise and update these Terms of Service from time to time in our sole discretion. We may sometimes ask you to review and to explicitly agree to (or reject) a revised version of these Terms of Service. In such cases, modifications will be effective at the time of your agreement to the modified version of these Terms of Service. If you do not agree at that time, you are not permitted to use the Offerings. If we do not ask for your explicit agreement the changes are effective and apply thereafter to all access to and use of the Offerings 15 days after posting for current users and immediately for new users. Your use of the Offerings following that period constitutes your acceptance of the terms and conditions of these Terms of Service as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Offerings.
15. Test Users: By participating in the test phase of our software, the user acknowledges and agrees that the tool's accuracy may be limited during this developmental stage. The user is required to answer a survey at the end of the test period and is encouraged to actively engage in the testing process by promptly providing feedback via email on any errors or issues identified. In recognition of their contribution, test users will receive complimentary access to the tool throughout the testing period up to an amount agreed upon by both parties in writing. It is expressly understood that section 5.5 of these terms and conditions does not apply to testing. User accounts, data entered, and documents generated during the test period will not be accessible after the test period ends. After test period is complete, test users are granted complimentary use of the tool up to the agreed-upon limit as specified in a written agreement between the parties. This arrangement is intended to foster collaboration and improve the software's reliability.
16. QUESTIONS. If you have any questions about the Offerings or these Terms of Service, please email us at terms@kendricktrade.com.
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