1. Services Description.
The Company offers the Services at its website www.RedFax.com (together with other websites owned and operated by the Company, the “Redfax Website”). Individually, the Services are:
- Redfax Pro is designed for higher volume Internet fax use and includes but is not limited to: (i) a personal geographical or toll-free telephone number (a “fax number”) that provides for the delivery of faxes, the Redfax Website or software applications provided by the Company; and (ii) outbound faxing from email, the Redfax Website or software applications provided by the Company.
- RedFax Personal® includes but is not limited to: (i) a fax number that provides for the delivery of faxes and the Redfax Website or software applications provided by the Company in volumes described below; and (ii) outbound faxing from email, the Redfax Website or software applications provided by the Company.
2. RedFax Service Usage Terms.
(a) Usage terms for the various tiers of RedFax service are as follows:
(1) RedFax Personal:
You may receive up to 300 fax pages (inbound) and may send up to 300 fax pages (outbound) within any thirty (30) day period, regardless of whether you are issued a local or a toll-free fax Number. Faxes received in excess of the inbound 300 page limit are charged at $0.05 (or the local currency equivalent) per page and faxes sent in excess of the outbound 300 page limit are charged at $0.05.
(2) RedFax Pro:
You may receive up to 600 fax pages (inbound) and may send up to 600 fax pages (outbound) within any thirty (30) day period, regardless of whether you are issued a local or a toll-free fax Number. Faxes received in excess of the inbound 600 page limit are charged at $0.05 (or the local currency equivalent) per page and faxes sent in excess of the outbound 600 page limit are charged at $0.05.
(b) Definition of Outbound Fax Page and Associated Outbound Terms:
Most fax pages take less than sixty (60) seconds to transmit. However, for each outbound transmission, the number of pages sent is calculated based on the greater of the actual number of pages or the number of full and partial 60-second increments of transmission or connection time, whether or not the transmission occurs or is completed (such as instances when someone answers the call or transmission is interrupted before completion). For example, a one page fax with a transmission duration of 30 seconds is recognized as one page and a one page fax with a transmission duration of one minute and six seconds is recognized as two pages.
Unused inbound or outbound Services credits are valid in the month issued and expire at the conclusion of each applicable thirty (30) day period. Inbound or outbound Services credits have no cash value. Such credits do not roll over to the next thirty (30) day period, and you will receive no cash refund in the event any unused inbound or outbound Services credits remain in your account upon termination or closure of your account.
3. Fax Storage.
While your account is active, fax messages received via your fax number will be stored and displayed in your logs. Regardless of your level of service, you acknowledge that the Company may cease offering this feature or change its practices and/or limitations concerning this feature at any time, including, without limitation, changing the maximum number of days that fax messages will be retained, the maximum number of messages stored at any one time and the maximum storage space allotted on the Company’s servers on your behalf. You further agree that the Company has no responsibility or liability whatsoever for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to the storage or deletion of any faxes.
4. Searchable Faxes.
If your fax Number is located in the U.S., the Company will scan, perform optical character recognition and index the text of fax messages received via your fax Number. The indexed text of these faxes will be searchable in your log for as long as the faxes are stored there. You acknowledge that the Company may cease offering this feature or change its practices and/or apply limitations concerning this feature at anytime. You further agree that the Company has no responsibility or liability whatsoever for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to the searching or indexing of or failure to search or index any faxes.
5. Email Capabilities.
All inbounded faxes received on your fax number will be forwarded as an attachment to the email you sign up with. The Company disclaims any liability or responsibility for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to: an error in the email transmission or receipt process; deletion of or failure to store any emails; non-receipt of emails; broken or non-functional links to emails; any viruses received through this feature.
In the event that the Company, in its sole discretion, determines or suspects that any emails sent or received through this feature constitute, or may give rise to, a violation of any law or regulation or this Agreement, or you are otherwise in breach of any provision of this Agreement, the Company reserves the right to remove your emails and/or to deactivate links to emails without further notice to you.
8. Unsolicited Fax Advertisement/Spam Drop-Box Policy.
a. Unsolicited Fax Advertisement Policy. The transmission of unsolicited fax advertisements is illegal in the United States under the Federal Telephone Consumer Protection Act of 1991 (TCPA) and in the European Union under the Privacy and Electronic Communications Regulations 2003, and is also illegal under the laws of a number of other countries, states and provinces. Distribution of unsolicited fax advertisements through the Services is prohibited. Notwithstanding the above, the Company’s distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement.
At the Company’s option and without further notice, the Company may use technologies and procedures, such as filters, that may terminate the transmission of such unsolicited fax advertisements without delivering them.
If you believe that you are in receipt of an unsolicited fax advertisement, please take the following two steps:
Step One: If the fax contains a telephone number, fax number or other contact information to “unsubscribe” from receipt of additional junk faxes, please do so; and
You hereby acknowledge and agree that the Company, as owner of all fax numbers, has any and all rights (but no obligation) to assert any and all legal claims available against any third party as a result of your receipt of any unsolicited fax advertisements, including but not limited to claims under the TCPA and similar laws of any other country, state or province, and, to the extent you do have any rights to bring any such claims, you hereby assign any and all such rights to the Company as consideration for its provision of the Services.
Either you or the Company may terminate your Services at any time, with or without cause, upon notice. In order to provide notice to the Company, RedFax customers must call the support number (239-443-4444) or login to their account settings to cancel the service. A customer service representative will assist you with canceling your account in accordance with the Company’s verification procedures, as such procedures may be changed by the Company in its sole discretion. Upon termination of your account, the Company will send you an email confirming that your account has been canceled. Your account will not be deemed canceled unless and until you receive this email. The Company reserves the right to terminate or suspend your Services without prior notice for any reason; provided that the Company will attempt to confirm such termination or suspension by subsequent notice.
10. Customer Representations.
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including, without limitation, minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
11. Modifications to Customer Agreement.
The Company may automatically amend this Agreement at any time by (a) posting a revised Customer Agreement on the RedFax Website, or (b) sending information regarding the amendment to the email address you provide to the Company. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE REDFAX WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUED USE OF THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and the Company.
12. Modifications to the Services.
The Company reserves the right to modify or discontinue any of the Services with or without notice to you. The Company shall not be liable to you or any third party should the Company exercise its right to modify or discontinue the Services.
13. Member Account, Password and Security.
Once you become a registered user, your fax number will be automatically sent to you by email. You may change your password from the RedFax Website. You are entirely responsible for maintaining the confidentiality of your password and account information.
14. Disclaimer of Warranties and Limitation of Liability.
a. ALL OF THE COMPANY’S SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE COMPANY’S SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY’S SOFTWARE OR THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. THE COMPANY AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY.
b. YOUR USE OF ALL OF THE COMPANY’S SOFTWARE AND THE SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING, AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING THE COMPANY’S SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY OR ITS AFFILIATES, OR LOSS RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR FILES UPLOADED, HOSTED OR TRANSMITTED VIA THE LARGE FILE SEND FEATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN ADDITION, YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES, WHETHER DIRECT OR INDIRECT (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE COMPANY’S SOFTWARE OR THE SERVICES, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH AFFILIATE, LICENSOR OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE COMPANY’S SOFTWARE AND THE SERVICES OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SOFTWARE OR THE SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
c. NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE OF THE COMPANY’S OR ANY SUCH AFFILIATE’S, LICENSOR’S OR SERVICE PROVIDER’S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO YOUR EMAIL ADDRESS, PAGER, TELEPHONE OR ANY OTHER RECEIVING DEVICES OR THIRD-PARTY DATA STORAGE AND/OR DELIVERY SERVICES.
d. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES OR ANY OTHER SERVICES OF THE COMPANY OR ITS AFFILIATES.
15. Refunds & Money Back Guarantee.
We are committed to providing products and services that will exceed your expectations. If you are not completely satisfied, you can receive a full refund of the cost. Requests for refunds must be submitted in writing to Sharktek Consulting, 1222 47th Street, Suite 201, Cape Coral, FL 33904, within 45 days of the effective date of service activation. In efforts to decrease refund abuse, the Company reserves the right to refuse service to a customer which has already been processed a refund.
a. Pricing Plans:
You agree to pay all charges for your use of the Services in accordance with the pricing plan you were offered and agreed to upon registering for the Services. The Company reserves the right to charge value-added taxes (“VAT”), sales or other taxes on the Services as it deems appropriate and the Company reserves the right to change prices or institute new charges for access to or use of the Services, including Discounted Services.
The Company may amend your pricing plan, including any charges thereto, at any time either by (a) posting pricing plan changes on the RedFax Website, or (b) sending information regarding the pricing plan changes to the email address you provided to the Company. You are responsible for regularly reviewing such pricing information. Continued use of the Services, or non-termination of your account, after changes are either posted or emailed to you constitutes your acceptance of the prices as modified.
If you have questions regarding any charges that have been applied to your account, you must contact the Company’s Customer Service Department within thirty (30) days of the charge date. Failure to do so will waive your ability to dispute such charges. Failure to use your account will not be deemed a basis for refusing to pay any charges.
b. Payment for Services:
If your Services account is a qualified business account approved by the Company for corporate billing, charges will be accumulated, identified by customer identification number and invoiced on a monthly basis. If the payment method for your Services account is by credit or debit card and payment is not received by the Company from the card issuer or its agent or affiliate, you agree to pay all amounts due upon demand by the Company. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that the Company is authorized to charge your designated card(s). Your card issuer’s agreement governs your use of your designated card in connection with payment for the Services, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder.
c. Viewing Your Account Balance: To view your current account balance, along with billing details and any accumulated charges, please click on “Account”, followed by “View Payment History” after logging in to the Redfax Website.
e. Pre-Paid Discounts: If you subscribed to the Services pursuant to a special offer granting a pre-paid discount for a fixed number of months, your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your initial monthly service fee for the month immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT and will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization. Such notice will not affect charges submitted before the Company reasonably could act on your notice.
f. Usage Charges:
Additional charges apply when you exceed the number of inbound or outbound fax pages included in your RedFax Services tier. Usage fees are payable in advance at a fixed amount as set from time to time by the Company, currently U.S. $10.00 or the approximate equivalent in local currency (the “Usage Prepay Amount”). You may choose to increase the size of your Usage Prepay Amount by logging into your account at the RedFax Website or by contacting the Company’s Customer Service Department. The Usage Prepay Amount will be immediately and automatically charged to your credit or debit card without further authorization from you upon incurring usage in excess of the number of inbound or outbound fax pages included in your RedFax service tier (or, in the event you are provided with a free usage credit, upon your depletion of such credit). Your Usage Prepay Amount will thereafter be reduced based upon your incurring usage fees, and each time your Usage Prepay Amount is depleted to a certain level (currently U.S. $2.00 or the approximate equivalent in local currency), another fixed Usage Prepay Amount in the same amount as the prior Usage Prepay Amount will be immediately charged to your credit or debit card, without further authorization from or notice to you.
Furthermore, in the event that the Company submits charges for your annual or monthly service fee and those charges are rejected by your card issuer (or its agent or affiliate), you hereby authorize the Company to apply your Usage Prepay Amount to pay for some or all of your annual or monthly service fee due.
You agree that the Company may submit charges for the Usage Prepay Amount without further authorization from or notice to you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated or canceled your RedFax Services, or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.
Upon your giving the Company notice that you have terminated or canceled your RedFax Services, or in the event that the Company should terminate or cancel your RedFax Services or account in accordance with the provisions herein, the unused portion of your Usage Prepay Amount (if any) will be applied toward any outstanding charges, and any remaining portion of your Usage Prepay Amount will be forfeited and non-refundable.
In addition, in the event you fail to incur usage charges on the Services for a period of six (6) months or longer, you will be deemed to have forfeited any remaining Usage Prepay Amount in your RedFax account. In such event, the Company reserves the right to eliminate your remaining Usage Prepay Amount (if any) without notice.
g. Notification of Changed Billing Information. You must promptly notify the Company of changes to: (a) the account number, security code or expiration date of your designated credit or debit cards; (b) your billing address for the designated credit or debit card; and (c) the name of each minor whom you have authorized to use your Services account. You must also promptly notify the Company if your card is canceled for any reason, including loss or theft. In order to avoid Services interruptions caused by rejected credit or debit card charges, the Company reserves the right to update your credit or debit card details (such as expiration dates or new card numbers). You understand and agree that the Company is entitled to obtain such updated card details, store them and use them to bill charges.
h. Usage and/or Account Credit Balances. The Company may, from time to time, award you a credit applied to your RedFax Services usage and/ or account balance, which is a non-refundable credit . RedFax Services usage and/ or account credit balances have no cash value. Usage and/or Account credit balances will expire on the earlier of (i) termination of your account or (ii) 30 days after they are issued, and are subject to any additional terms associated with the credit offer.
i. Late Fees. A late fee of U.S. $5.00 (or the local currency equivalent) may be charged to your account each time full payment of your outstanding balance is not received by the payment due date. You agree that the Company may submit charges for late fees without further authorization from or notice to you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated or canceled your RedFax Services, or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.
17. Termination for Non-Payment.
The Company reserves the right to suspend or terminate your account and associated Services without notice upon rejection of any credit or debit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising any portion of the Services are wholly owned by the Company, its affiliates and/or its licensors and service providers except where expressly stated otherwise. You may not use the Company’s or its affiliates’ trademarks, trade names, patents, copyrights or other intellectual property rights without the Company’s prior written permission.
You agree to indemnify the Company and each of its affiliates, licensors and service providers from and against any and all liabilities, expenses (including attorneys’ fees) and damages arising out of claims based upon use of the Services, including but not limited to any violation of this Agreement by you or any other person using your account, any claim of libel, defamation, violation of rights of privacy or publicity, any loss of service by other customers, any infringement of intellectual property or other rights of any third parties and any violation of any laws or regulations, including but not limited to any violation of any laws or regulations prohibiting transmission of unsolicited fax advertisements.
20. No Resale Of The Services.
You are prohibited from selling, reselling, renting or leasing the use of the Services.
21. Participation In Promotions Of Advertisers.
You may correspond with or participate in promotions of advertisers showing their products via the Services. Any such correspondence or participation, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. The Company assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
22. Notices; Consent.
Notices given by the Company to you will be given by email, by a general posting on the RedFax Website or by conventional mail. In any matter requiring the Company’s prior consent, such consent will be considered given only if made in writing by an authorized representative of the Company. Notices given by you to the Company must be given by email or by conventional mail (subject, however, to the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion, and which may include the requirement that you contact the Company by phone so as to confirm that any such notice was in fact sent by you). Notices to the Company by conventional mail must be sent to Sharktek Consulting, 1222 SE 47th Street, Cape Coral, Florida, 33904.
23. General Terms.
THE LAWS OF THE STATE OF CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF THE COMPANY’S SOFTWARE AND THE SERVICES. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. YOU EXPRESSLY AGREE THAT EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF THE COMPANY’S SOFTWARE OR THE SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA LOCATED IN THE CITY AND COUNTY OF LOS ANGELES; provided nothing in this section shall restrict either of the parties from resorting to the courts of any jurisdiction in order to collect, enforce or execute any judgment obtained in the federal or state courts located in the State of California. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Company’s failure to act with respect to a breach by you or others does not waive the Company’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder whether by direct assignment, by operation of law or otherwise, and any attempt to the contrary is void. The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company’s reasonable control. Parental control protections (such as commercially available computer hardware, software or filtering services) may assist you in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of fax or email messages received through the Services.
24. Legal Notices.
Under California Civil Code Section 1789.3, California Customers are entitled to the following specific consumer rights information:
a. Pricing Information. Current rates for using the Services may be obtained on the RedFax Website or by calling the Company’s Customer Service Department. The Company reserves the right to change fees, surcharges and monthly fees or to institute new fees at any time.
b. Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
25. Agreement to Arbitrate All Disputes.
a. You and the Company agree that all disputes and claims between you and the Company shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to any dispute, claim or controversy arising out of or relating in any way to the Services, the Company’s software, the RedFax Website, the Agreement or any aspect of the relationship between you and the Company. You agree that, by agreeing to the Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against the Company on your behalf. This arbitration provision shall survive termination of this Agreement and the termination of your account.
b. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be addressed to: Sharktek Consulting, 1222 SE 47th Street, Cape Coral, Florida, 33904. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after the Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.
c. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of the Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless the Company and you agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement.
d. The Company may make a written settlement offer anytime before an arbitrator is selected. If the arbitrator issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or if the Company did not make a settlement offer before an arbitrator was selected), then the Company will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
e. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
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This document was last updated on December 12, 2014