Terms of ServiceLast revised 7/24/13

The website located at www.CabinetGenie.com (the “Site”) is a copyrighted work belonging to Cabinet Genie, Inc. (“Cabinet Genie”, “us”, and “we”). Cabinet Genie provides services that assist businesses with evaluating and optimizing marketing campaigns for their websites (each, a “Business Website”) (such services, collectively with all other services provided through the Site, the “Services”). Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. The Service is intended for use by business owners (“Businesses”) and marketing agencies (“Agencies”) and not consumers.

These Terms of Use (“Agreement”) sets forth the legally binding terms for your use of the Site and Services. By accessing or using the Site or Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. you may not access or use the Site or Services or accept the Agreement if you are not at least 18 years old. If you do not agree with all of the provisions of this Agreement, do not access and/or use the Site or Services. If you are using the Site or Services on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to this Agreement.

 

This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.

 

  1. Accounts

    1. Account Creation. If you are a Business, you can create a “Business Account” or be provided a Business Account from the Agency you work with (in accordance with the requirements in Section 1.3). If you are an Agency, you can create an “Agency Account.” “Cabinet Genie Account” means both Business Accounts and Agency Accounts. In order to use certain features of the Site (e.g., to use the Services), you must register for or be provided with a Cabinet Genie Account. If you register for a Cabinet Genie Account, you will be required to provide certain information as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Cabinet Genie Account at any time, for any reason, by following the instructions on the Site. Cabinet Genie may suspend or terminate your Cabinet Genie Account in accordance with Section 1.
    2. Cabinet Genie Account Responsibilities. You are responsible for maintaining the confidentiality of your Cabinet Genie Account login information and are fully responsible for all activities that occur under your Cabinet Genie Account and, if using an Agency Account, for all activities that occur under Business Accounts created with your Agency Account. You agree to immediately notify Cabinet Genie of any unauthorized use, or suspected unauthorized use of your Cabinet Genie Account or any other breach of security. Cabinet Genie cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
    3. Reselling Business Account Subscriptions. This Section 1.3 applies to Agency users. Subject to the terms and conditions of this Agreement, Cabinet Genie appoints you as a nonexclusive reseller of Business Account Subscriptions (as defined below) ordered with your Agency Account Subscription and for which you have paid the applicable fee per Section 2. You may create and delete Business Accounts using your Agency Account in accordance with your Agency Account Subscription. You are solely responsible for any disputes arising between you and your customers in regards to the creation or deletion of Business Accounts. You will immediately notify Cabinet Genie of any breach of this Agreement by your Business customers. You agree that Cabinet Genie’s obligation to provide a Business Account Subscription ordered with your Agency Account is subject to the applicable Business user agreeing to, and strictly complying with, this Agreement. You will use commercially reasonable efforts to market, promote, and resell Business Account Subscriptions. You, at your sole discretion, are entitled to determine the pricing offered to your Business customers for any Business Account Subscriptions ordered with your Agency Account, provided you pay for such Business Account Subscriptions in advance in accordance with Section 2. Subject to the terms of this Agreement, Cabinet Genie grants you a non-transferable, non-exclusive license to use Cabinet Genie’s trademarks (the “Cabinet Genie Marks”), subject to Cabinet Genie’s current trademark usage guidelines, solely for the purpose of promoting Business Account Subscriptions to Business customers. You acknowledge that all rights and goodwill in the Cabinet Genie Marks shall inure to the benefit of Cabinet Genie
  2. Payment Terms

    1. Ordering Subscriptions. Businesses may order subscriptions for Business Accounts and Agencies may order subscriptions for an Agency Account for itself and a set number of Business Account Subscriptions for its Business customers (each, a “Subscription”) by following the directions on the Site. Once you order a Subscription, your Subscription will automatically renew month-to-month until you cancel your Subscription by following the directions on the Site. Each Business Account Subscription may only be used with one Business Website. Cabinet Genie may change the pricing for the Subscription (from time to time in its sole discretion) by updating the Site and without any additional notice to you, provided that any changes will not take effect until your Subscription renews.
    2. Payment Terms. If you order a Subscription, you agree to pay the then-current applicable Subscription fee listed on the Site, unless you have a separate, custom pricing agreement with Cabinet Genie, in which case, such pricing terms apply to your Subscription order and are hereby incorporated by reference. Cabinet Genie will automatically bill your credit card submitted in ordering the Subscription on the date the Subscription is activated, and each month thereafter, 30 days in advance, until you cancel your Subscription. All payments are non-refundable. You here by authorize Cabinet Genie to bill your credit card as described above. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. If any fee cannot be charged to your credit card for any reason, Cabinet Genie may provide you, via email, notice of such non-payment and a link for you to update your payment information. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then Cabinet Genie may terminate the applicable Service.
  3. Site and Software

    1. Business Account Licenses. Subject to the terms of this Agreement, during your Subscription term, Cabinet Genie grants Business Account users a) a non-transferable, non-exclusive, license to use the Site and Services for your internal business purposes in connection with your Business Website; and b) a non-transferable, non-exclusive, license to install and use the software Cabinet Genie makes available on the Site (including any browser or software plugins made available on the Site) (collectively, the “Cabinet Genie Software”), in executable object code format only, solely on your own computer or on your Business Site for your internal business purposes in connection with your Business Website and your use of the Site and Services. As used in this Agreement, the term “Services” includes the Cabinet Genie Software.
    2. Agency Account Licenses. Subject to the terms of this Agreement, during your Subscription term, Cabinet Genie grants Agency Account users a non-transferable, non-exclusive license, without the right to sublicense, to use the Site and Services solely for the purposes of (a) demonstrating, marketing, and promoting the Services to Business customers and (b) use the Site and Services for your internal business purposes in connection with your website.
    3. Automatic Software Authorization. You acknowledge that the Cabinet Genie Software includes plugins that may remotely transmit information from your computer and Business Website and other online service accounts (as described on the respective Cabinet Genie Software documentation), including contact information, user data from your Business Website, and content from your emails, to Cabinet Genie in order to enable Cabinet Genie to provide you with the Services. You hereby consent to and authorize Cabinet Genie to retrieve or receive and process such information transmitted by the Cabinet Genie Software. If you do not want such information to be transmitted to Cabinet Genie, your sole and exclusive remedy is to terminate this Agreement and uninstall the applicable Cabinet Genie Software.
    4. Software Updates. We may (from time to time in our sole discretion) develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Cabinet Genie Software (“Updates”). Any Updates are licensed under, and governed by, this Agreement and are deemed part of the “Cabinet Genie Software.” You acknowledge that you may be required to install Updates to use and receive the Services and you agree to promptly install any Updates we provide.
    5. Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services (except as an Agency Account owner selling Business Account Subscriptions to their Business customers); (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
    6. Modification. Cabinet Genie reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Cabinet Genie will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
    7. Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and Services are owned by Cabinet Genie or Cabinet Genie’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Cabinet Genie and its suppliers reserve all rights not granted in this Agreement.
  4. User Content

    1. User Content: “User Content” means any and all information and content that (a) a user submits to, or uses with, the Site or Services or (b) is collected through the Cabinet Genie Software (e.g. through your computer), other online services which you link to the Cabinet Genie Software, or your Business Website. For avoidance of doubt, your User Content includes user information collected by the Cabinet Genie Software about users of your Customer Website. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that you have the authorization to consent to our use of your User Content and that your User Content does not violate the Acceptable Use Policy (defined below). Because you alone are responsible for your User Content (and not Cabinet Genie), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or any applicable privacy laws. You agree that any use of the Service contrary to or in violation of your representations and warranties in this Section 4.1 constitutes improper and unauthorized use of the Service.
    2. Retention Policy: Cabinet Genie is not obligated to backup any User Content. Cabinet Genie therefore recommends that you create backup copies of any User Content at your sole cost and expense. In the event of a loss of User Content caused by Cabinet Genie, Cabinet Genie will use commercially reasonable efforts to recover the User Content. In the event your access to the Service is terminated (other than by reason of your breach), Cabinet Genie will make available to you a file of the User Content if requested in writing by you within thirty (30) days after such termination. You agree and acknowledge that Cabinet Genie has no obligation to retain the User Content, and may delete such User Content, at any time on or after the thirty-first (31st) day following termination. Cabinet Genie reserves the right to withhold, remove and/or discard User Content, without notice, for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use User Content shall immediately cease, and Cabinet Genie will have no obligation to maintain or provide any User Content.
    3. License: You hereby grant, and you represent and warrant that you have the right to grant, to Cabinet Genie an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of (a) providing you with the Services and (b) creating and using aggregated and anonymized data from your User Content for any purpose (collectively, the “Permitted Purposes”). You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
    4. Privacy: Confidential Information. Cabinet Genie will not use personal information in your User Content other than for the Permitted Purposes or disclose personal information in your User Content to a third party, except: (a) Cabinet Genie may disclose personal information to our service providers to provide you with the Services; (b) Cabinet Genie may share personal information when Cabinet Genie does a business deal, or negotiates a business deal, involving sale or transfer of all or a part of Cabinet Genie’s company or Cabinet Genie’s assets; or (c) Cabinet Genie may share personal information as necessary to (i) comply with the law, any lawful request, or any legal process served on Cabinet Genie, (ii) protect and defend the rights or property of Cabinet Genie and its employees, agents, users, and others, (iii) act in an emergency, including to protect someone’s safety, or (iv) investigate any violation or potential violation of the law or Cabinet Genie’s agreements, policies, or terms (“Permitted Disclosures”).
    5. Feedback: If you provide Cabinet Genie any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Cabinet Genie all rights in the Feedback and agree that Cabinet Genie shall have the right to use such Feedback and related information in any manner it deems appropriate. Cabinet Genie will treat any Feedback you provide to Cabinet Genie as non-confidential and non-proprietary. You agree that you will not submit to Cabinet Genie any information or ideas that you consider to be confidential or proprietary.
  5. Acceptable Use Policy. The following sets forth Cabinet Genie’s “Acceptable Use Policy”

    1. You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
    2. In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.
    3. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Cabinet Genie Account in accordance with Section 1, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
    4. You agree that you will only use the Services on Business Websites you own which comply with this Acceptable Use Policy and that contain a privacy policy that discloses that Cabinet Genie will collect and use information (including personal information) from users of your Business Website for the Permitted Purposes and will disclose such information according to the Permitted Disclosures. You are solely responsible for compliance with all applicable laws, including privacy laws, in connection with your Business Website.
  6. Indemnity

    1. You agree to indemnify and hold Cabinet Genie (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services (or, if applicable, any use of Business Account Subscriptions ordered with your Agency Account Subscription), (ii) your User Content, (iii) your violation of this Agreement; (iv) your violation of any terms of use or privacy policy accompanying your Business Website, or (v) your violation of applicable laws or regulations (including any laws related to the collection of personally identifiable information from your Business Website users). Cabinet Genie reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Cabinet Genie. Cabinet Genie will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
  7. Third Party Sites & Ads; Other Users

    1. Third Party Sites: The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Cabinet Genie and Cabinet Genie is not responsible for any Third Party Sites. Cabinet Genie provides links to these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you use a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
    2. Other Users: Each Site user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Cabinet Genie will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
    3. Release: You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
  8. Disclaimers

    THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
  9. Limitation on Liability

    IN NO EVENT SHALL WE (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SITE OR SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID CABINET GENIE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

    SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
  10. Term and Termination.

    Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Cabinet Genie Account Subscription) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this
    1. Agreement: Upon termination of this Agreement, your Cabinet Genie Account and right to access and use the Site and Services will terminate immediately. In the event that the Agreement is terminated early and you have not breached this Agreement, Cabinet Genie will provide you with a pro rata refund of any fees paid to Cabinet Genie based upon any unused period of your Subscriptions. You understand that any termination of your Cabinet Genie Account involves deletion of your User Content associated therewith from our live databases. Cabinet Genie will not have any liability whatsoever to you for deletion of your User Content for any termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.5-3.7, 4 – 11.
  11. General

    1. No Support or Maintenance: You acknowledge and agree that Cabinet Genie will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
    2. Changes to Terms of Use: This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
  12. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

    1. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Cabinet Genie and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this Agreement, shall exclusively be settled through binding and confidential arbitration.
    2. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. [As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.]
    3. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
    4. You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
    5. Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Santa Barbara County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Santa Barbara County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Santa Barbara County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
    6. With the exception of subparts (1) and (2) in the paragraph 11.3(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 11.3(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than inarbitration, the dispute shall be exclusively brought in state or federal court in Santa Barbara County, California.
    7. Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided Cabinet Genie with written notice prior to the date of termination.
    8. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
    9.  Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this Agreement, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
    10. Entire Agreement: This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Cabinet Genie is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Cabinet Genie’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
    11. Copyright/Trademark Information: Copyright © 2013, Cabinet Genie, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
    12. Electronic Communications: The communications between you and Cabinet Genie use electronic means, whether you send us emails, or whether Cabinet Genie communicates with you via email. For contractual purposes, you (a) consent to receive communications from Cabinet Genie in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cabinet Genie provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
    13. Contact Information:
      Cabinet Genie
       116 N. Tennessee Street #202
      McKinney, TX 75069
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