Terms of Service
The following Terms of Service (“Terms”) between you (“you” or “your”) and Enception Rentals. (“we,” “our,” “us,” or “Enception”) describes the terms and conditions on which you may access and use the Enception Rentals website located at enceptionrentals.com (the “Site”) and related services including Enception’s product rental and sale services (together with the Site, and the Encpetion Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 8 of these Terms below.
About the Services
Rental and Sale of Products
Special Trial Programs
Use of the Services
Disclaimer of Warranties; Limitation of Liability
Dispute Resolution, Arbitration and Class Action Waiver
1. ABOUT THE SERVICES
Through the Services, we aim to give you access to beautiful gowns and accessories, stylist advice and other content to help you decide which items are perfect for you.
B. Mobile Charges
To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any item (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.
D. Modification of the Services or the Terms
Enception may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, Enception will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to Enception upon registration.
2. RENTAL PRODUCTS
A. General Conditions
The Services include the rental of Products. This Section 2(A) sets out terms and conditions that apply to your rental of any Product.
18 YEARS OR OLDER. Products may be rented for use by individuals under 18 years of age, but we rent only to adults, who may rent the Products with a payment card or other approved payment method. By clicking agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting the Products as described in these Terms.
LIMITS. You acknowledge and agree that we may place limits on the rental of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals of Products for any reason, including but not limited to availability concerns.
DELIVERY. All deliveries will be through Enception’s shipping partners, which may change from time to time at Enception’s discretion. The shipping method used will be at the discretion of Enception.
COLLECTIONS. If you do not pay the amounts you owe to Enception when due, then Enception will need to institute collection procedures. You agree to pay Enception’s costs of collection, including without limitation reasonable attorneys’ fees.
The following additional conditions apply to the rental of any Product.
RENTAL FEE. The rental fee (“Rental Fee”) for the Product will be the total of the rental fee, insurance charges and delivery charges listed on the Site for your rental of the Product. When you place your rental order for a Product, you hereby authorize Enception to charge your payment card for the Rental Fee. Enception will charge your payment card the amount of the Rental Fee immediately upon your rental order. A reservation of a Product on the Site is an order for the rental of that Product, regardless of how far in advance that Product is reserved. In addition, at the time of your rental order for a Product, you hereby authorize Enception to charge your payment card for an amount equal to 100% of the original retail value of the Product set forth on the Site (“Retail Value”) plus applicable sales taxes; provided that Enception will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Enception, shall be paid by you to Enception in connection with your rental order.
CANCELLATION POLICY. You may cancel your rental order subject to the following cancellation fees and policies:
If you cancel thirty (30) or more days in advance of the delivery date, there is no cancellation fee and you will receive a full refund issued to the payment card you used for the order.
If you cancel less than thirty (30) days but more than fourteen (14) days in advance of the delivery date, you will not receive any refund, but you will receive a full credit to your Enception account for the Rental Fee associated with the cancelled order. This credit can be applied to any future Enception rental.
If you cancel fourteen (14) or fewer days in advance of the delivery date, you can still receive a credit to your Enception account for the Rental Fee associated with the cancelled order, minus a cancellation fee of $20.
RETURN PACKAGING. With delivery of the Product, Enception will provide you with a pre-paid, pre-addressed box or mailing envelope (as the case may be) as well as instructions for your use in returning the Products to Enception (“Return Packaging”). The Enception garment bag or folding sheet that your dress arrives in is not yours to keep. If the Enception garment bag or folding sheet is not returned you will be charged a $20 fee (details below under “Lost Return Packaging”).
RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a Secure Shipping Address is highly recommended. A “Secure Shipping Address” means a location where an individual can physically receive Product(s). In the event that an un-secure shipping address is provided, Enception does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Enception will not be liable. You will be liable for all such delays and additional delivery fees.
USE OF THE PRODUCTS. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, major stains or any other cause, other than normal wear and tear. Normal wear and tear encompasses minor stains, rips, a few missing beads, stuck zippers or other minor damage covered by the insurance you paid for with your rental of the applicable Product. If you return a Product that is damaged beyond normal wear and tear, then you agree that we shall charge you, and you shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the full Retail Value for the Product.
RETURN OF THE PRODUCTS; EXTENSIONS. You agree to return the Products to Enception in the Return Packaging on or before the return date for the Products that are identified in the online invoice for your order. You must return the Product by delivering the Product in the Return Packaging to a UPS store located in the United States by 12 p.m. on or before the date that the Product is due.
LATE FEES. If you return the Products late or not at all, a late fee of 50% the cost of a 3 day rental will be charged to the payment card you used to pay the Rental Fee or to any other payment card included in your account information that you have provided to Enception for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 100% of the Retail Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each Product that is not returned when due. If you have not returned a Product within twenty (20) days after the return date for the Product, your late return will be considered a non-return and Enception will charge your payment card the maximum late fee set forth in this Section 2(B), less any late fees that you have already paid, plus applicable sales tax.
PAYMENT OF 100% RENTAL VALUE Enception will not charge you for more than an amount equal to 100% of the Retail Value plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay Enception an amount equal to 100% of the Retail Value under this Section 2(B) and you still possess the Product, the Product is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LOST RETURN PACKAGING. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the expected return date, and providing Enception with a tracking number. If you lose or fail to return the Enception garment bag or folding sheet you will be charged $20. If you still possess the Enception garment bag or folding sheet, it is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LIMITED WARRANTIES. The following are the limited warranties Enception provides in connection with Product rentals. Enception’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee (excluding insurance and delivery charges) as determined by Enception. See Section 7(A) below.
CORRECT PRODUCTS. We will deliver the Products you ordered on or before the delivery date for which you ordered them, except in the rare event that the Product is damaged beyond repair or is otherwise unavailable. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. Products may appear different in color and style than as displayed on the Site.
CLEAN AND READY TO WEAR. Enception dry cleans and inspects each Product with the utmost care, but use of the Product is at your own risk and Enception shall not be held liable for any health-related complaints associated with any Product.
3. SPECIAL TRIAL PROGRAMS
A. General Conditions
Enception provides certain trial programs, as described under this Section 3. This Section 3(A) sets out terms and conditions that apply to your participation in any of these programs. Section 3(B) sets out additional terms and conditions that apply to the “Enception Pro” service, and Section 3(C) sets out additional terms and conditions for the “ ” program.
CHANGES TO PROGRAMS. Enception reserves the right to add, remove or modify trial program benefits at any time, but we will use reasonable efforts to notify you of any material changes. In the event of any such material change, you may cancel your subscription immediately upon notice to us, and we will give you a prorated refund for the remainder of your current subscription period. Any increases in fees that we introduce will apply to subsequent subscription renewal periods. YOUR CONTINUED PROGRAM SUBSCRIPTION AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES.
FAILURE TO PAY FEES.. We reserve the right to pursue any amounts you fail to pay in connection with any trial program in accordance with these Terms.
TERMINATION. We may terminate any of the trial programs, or your membership in any of these programs, at any time. If we do so, we will give you a prorated refund for the remainder of your current subscription period. However, we will not give any refund for termination related to conduct that, in our discretion, violates any terms or conditions set out in these Terms or any applicable law.
B. Enception Pro.
The following additional terms and conditions apply if you subscribe to our Enception Pro service (“Enception Pro”).
ENCEPTION PRO SERVICE. If you subscribe to Enception Pro, you will be entitled to rent up to ten (10) Products annually at any time for a 5 day rental period from all Products on the Site, as more fully described here. Subject to your compliance with these Terms (including payment of fees) and our right to terminate Enception Pro, you may rent any item(s) for a 5 day rental period during your subscription period until you have reached your 10 Product rentals. Unused rentals will not carry into the next subscription period. Because Enception Pro is a beta, membership is limited and may not always be available.
FEES. If you subscribe to Enception Pro, Enception will charge you a recurring automatic annual subscription fee. The current Enception Pro subscription fee is set out here, but is subject to change at our discretion and any such change will be effective for any subsequent renewal subscription period. You hereby authorize Enception or our third party payment processor to charge your payment card for the applicable Enception Pro subscription fee. Enception Pro subscription fees are non-refundable except as expressly set forth below. Taxes may apply on Enception Pro subscription fees.
SUBSCRIPTION CANCELLATION AND RENEWAL. You may cancel Enception Pro at any time, but your cancellation will be effective at the end of the current annual subscription period. This means your Enception Pro subscription will continue for the remainder of that period and you will not receive a refund. Your Pro subscription renews automatically on an annual basis at the then current fee and benefits then in effect until you cancel.You may cancel or renew Enception Pro or find out more information about your Enception Pro subscription, including your annual expiration date, by contacting email@example.com.
You hereby authorize Enception or our third party payment processor to charge your payment card for the applicable Enception Pro subscription fee on a recurring pre-pay yearly basis until you cancel. The subscription fees do not include shipping or insurance. Taxes may apply on Enception Pro subscription fees.
DAMAGE, FAILURE TO RETURN PRODUCTS. Unless you cancel your Enception Pro subscription, it will automatically renew on a recurring yearly pre-pay basis. You authorize us to collect the applicable subscription fee and any taxes, using any payment card on record for you, in connection with any such auto-renewal. You may cancel your Enception Pro subscription or find out more information about your Enception Pro subscription, including your recurring yearly pre-pay renewal date, by contacting firstname.lastname@example.org. When you cancel, you may continue to use your remaining rentals until your subscription expires. Unused rentals will not carry over to the next subscription period. Products must be returned to Enception all such Products on or before the last day of the applicable subscription period during which you cancel. If we don’t receive your items on time, you will be charged up to 100% of the retail price. You will not be entitled to any refund of subscription fees.
CHANGES TO AND TERMINATION OF ENCEPTION PRO. As Enception Pro is a beta program, we reserve the right to modify Enception Pro (including the subscription fee) or terminate Enception Pro or your Enception Pro subscription at our sole discretion. If we terminate your Enception Pro subscription, we will provide you with, as determined in our sole discretion, either (a) a prorated refund for the remainder of your current applicable subscription, or (b) continued access to Enception Pro for the remainder of that applicable period, in accordance with these Terms. However, we will not give any refund for termination related to conduct that, in our discretion, violates any terms set out in these Terms or any applicable law. If we choose to provide you with continued access to Enception Pro for the remainder of that applicable period of your subscription, you will continue to have access to Enception Pro during that period, except that we will not send you any Products within ten (10) days of the end of that period. Prior to the end of that period (or, if we do not provide you with continued access to Enception Pro, immediately upon our termination of Enception Pro or your Enception Pro subscription), you must also return to Enception Pro all Products you have received in connection with Enception Pro.
4. Use of the Services
A. Enception Content
CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“Enception Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The Enception Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any Enception Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the Enception Content.
UPDATES We may update the Enception Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to email@example.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
B. Third Party Content
LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-Enception websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and Enception is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from Enception, and Enception has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that Enception endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
C. Acceptable Use Policy
USE OF ENCEPTION CONTENT. No part of the Services, including the Enception Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that Enception authorizes you to view, copy, download, and print Enception Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the Enception Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the Enception Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the Enception Content.
INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend Enception and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
D. Your Content
If you post, upload or make available to Enception or the Services, or otherwise submit to or through Enception as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to Enception a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 4(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize Enception to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
E. Your Account
Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify Enception promptly of any unauthorized use of your account or password.
There may be delays, omissions, or inaccuracies in the Services, including the Enception Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
5. INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including the Enception Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of Enception and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “Enception Rentals” and the Enception logo are registered trademarks of Enception Rentals, under the applicable laws of the United States and/or other countries. Other Enception product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of Enception and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. Enception and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Enception Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of Enception or such third party that may own such Enception Content.
B. Services License
Subject to your compliance with these Terms, Enception grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal purposes.
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that Enception may use your Feedback without restriction or obligation to you or any third party.
E. Notice and Take Down Procedures; Copyright Agent
If you believe any Enception Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting Enception at firstname.lastname@example.org and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.
In an effort to protect the rights of copyright owners, Enception maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Services who are repeat infringers.
A. Termination By You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at email@example.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
B. Termination By Enception
Any violation of these Terms, including any of the prohibitions in Section 4(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. Enception may also terminate your account if Enception determines that your conduct poses a risk or liability to Enception, or for any other reason as determined by Enception in its sole discretion.
C. Effects of Termination
In each of these cases, the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C), 3(A) (Failure to Pay Fees), 4(A)-(D), 5(A), 5(C) (Acknowledgment), 5(D), 6(C), and 7-9, including the mandatory arbitration and class-action waiver provisions.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties
The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by Enception in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.
B. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, ENCEPTION DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE ENCEPTION CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY WHERE OTHERWISE PROHIBITED BY LAW.
C. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL ENCEPTION BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF ENCEPTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS.
8. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 8 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and Enception agree that in the event of any dispute between us, you and Enception will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and Enception will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of Enception or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either Enception or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration, with Enception remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and Enception shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
JURISDICTIONAL ISSUES. Currently, Enception is only available within the contiguous United States. Enception makes no representation that the Services are appropriate or available for use outside the United States.
GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of Illinois, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in St. Clair County, Illinois, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
ENTIRE AGREEMENT. These Terms are the entire agreement between you and Enception relating to the subject matter herein and shall not be modified except by Enception in accordance with these Terms, or as otherwise agreed in writing by you and Enception. No employee, agent or other representative of Enception has any authority to bind Enception with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. Enception may assign these Terms at any time without notice to you.
FORCE MAJEURE. Enception will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Enception’s reasonable control.
CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to Enception at firstname.lastname@example.org.
These terms and conditions are effective as of June 15, 2016.