GetMulch.com
Website Terms of Use
Version 1.1
Last revised on: August 28th 2020
The website located at www.GetMulch.com (the "Site") is a copyrighted work belonging to Bulk Performance, LLC ("Company", "us", "our", and "we"). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. Your use of this Site or submission of service requests via telephone constitutes your agreement to all such Terms, conditions, and notices in effect at such time. These Terms apply to any services or properties such as websites or apps owned and operated by the Company (including but not limited to the Site and any mobile app operated by the Company) and collectively referred to herein as "GetMulch.com," on which a link to these Terms appears. If you have any questions regarding these Terms, you may contact us at www.GetMulch.com.
THESE TERMS OF USE ("Terms") SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF GETMULCH.COM. BY ACCESSING OR USING GETMULCH.COM, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE GETMULCH.COM OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE GETMULCH.COM.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
OVERVIEW OF SERVICES
GetMulch.com is intended to provide an easy way for you to locate mulch installers ("Mulch Providers"). Upon entering your specific information, we will use our efforts to match you with one or more Mulch Providers in your area who may be interested and qualified to provide mulch to you. We cannot guarantee that there are Mulch Providers in your area that are either capable or willing to complete your particular job or, if so, that we will be able to match your specific request with a Mulch Provider in your area. Appointments that you set with Mulch Providers using GetMulch.com are between you and the particular Mulch Provider. The Mulch Provider is solely responsible for providing the mulch (and any other products agreed between you and the Mulch Provider) and services facilitated through GetMulch.com. We do not guarantee that Mulch Provider will be on time for, or even show up for, any such appointments, because the Mulch Providers are not the employees, contractors or agents of GetMulch.com. By using GetMulch.com, you agree that we are not responsible for the unavailability or inattentiveness of any Mulch Provider or for any of your other interactions you may have with a Mulch Provider identified through GetMulch.com. We only provide the platform to attempt to facilitate scheduling of appointments between you and Mulch Providers.
WE MAKE NO GUARANTEES, WARRANTIES OR REPRESENTATIONS REGARDING THE SKILLS, WORK ETHIC, LICENSURE, CREDIT WORTHINESS OR REPUTATION OF ANY MULCH PROVIDER OR THE QUALITY OF THE JOB THAT ANY MULCH PROVIDERS MAY PERFORM FOR YOU IF YOU ELECT TO RETAIN THEIR SERVICES. GETMULCH.COM DOES NOT ENDORSE OR RECOMMEND THE SERVICES OF ANY PARTICULAR MULCH PROVIDER. WE DO NOT INDEPENDENTLY VERIFY THEIR REPRESENTATIONS ABOUT THEIR SERVICES, THEIR BACKGROUNDS, THEIR LICENSES OR INSURANCE COVERAGE NOR VALIDATE ANY REVIEWS. IT IS ENTIRELY UP TO YOU TO EVALUATE THE MULCH PROVIDER AND THE MULCH PROVIDER'S QUALIFICATIONS, AND TO DECIDE WHETHER TO ENTER INTO A CONTRACT (WHICH WILL BE DIRECTLY WITH THE MULCH PROVIDER) OR OTHERWISE REACH AGREEMENT WITH A MULCH PROVIDER. WE CANNOT AND DO NOT GUARANTEE OR WARRANT ANY MULCH PROVIDER'S PERFORMANCE OR THE OUTCOME OR QUALITY OF THE PRODUCTS PROVIDED OR SERVICES PERFORMED.
AGAIN, MULCH PROVIDERS ARE NOT OUR EMPLOYEES OR AGENTS AND WE HAVE NO CONTROL OVER THEM. WE ARE ALSO NOT AN AGENT OF ANY MULCH PROVIDER.
We may inform you of certain offers or discounts provided by a Mulch Provider. Such offers or discounts are made solely by the Mulch Provider, and GetMulch.com does not guarantee or warrant the pricing or discounts that a Mulch Provider may offer you. Any quotes provided by Mulch Providers via GetMulch.com, or which you find on GetMulch.com, are not contractually binding offers by GetMulch.com, are for informational purposes only, and cannot be accepted as a definitive contract on or via GetMulch.com. No contractual arrangement is created based upon the quotes provided to you from Mulch Providers (or your scheduling of an appointment with a Mulch Provider) via GetMulch.com, however, Mulch Providers are expected to honor the quotes they provide to you through GetMulch.com. As a legal matter, to contract with a Mulch Provider, you must work directly with the Mulch Provider. GetMulch.com does not perform, and is not responsible for, any of the services requested by you in your service request. Your rights under contracts you enter into with Mulch Providers are governed by the terms of such contracts and by applicable federal, state, provincial and local laws. GetMulch.com is not itself a party to any such agreements. All applicable payments and any applicable taxes must be made to the Mulch Provider in accordance with the agreements you enter into with Mulch Providers. Should you have a dispute with respect to any services provided by a Mulch Provider or the fees charged by any Mulch Provider, you must address such dispute with the Mulch Provider directly. You hereby agree to release GetMulch.com (and our managers, officers, directors, members, affiliates, employees and agents) from any damages or claims (including consequential and incidental damages) of every kind or nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes and your dealings with Mulch Providers.
1. Access to GetMulch.com; Payments
1.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access GetMulch.com solely for your own personal use.
1.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit GetMulch.com, whether in whole or in part, or any content displayed on GetMulch.com; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of GetMulch.com; (c) you shall not access GetMulch.com in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of GetMulch.com may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of GetMulch.com shall be subject to these Terms. All copyright and other proprietary notices on GetMulch.com (or on any content displayed on the Site) must be retained on all copies thereof.
1.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue GetMulch.com (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of GetMulch.com or any part thereof.
1.4 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with GetMulch.com.
1.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in GetMulch.com and its content are owned by Company or Company's suppliers. Neither these Terms (nor your access to GetMulch.com) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
1.6 Payments. We may facilitate your payment for goods or services provided by Mulch Providers through GetMulch.com. Such payments will go directly to the applicable Mulch Provider and GetMulch.com makes no representation or warranty with respect to any such payment options or services which are wholly provided by third parties. If you have a dispute with a Mulch Provider regarding the amount of money that you paid a Mulch Provider for the services by the Mulch Provider we request that you advise us immediately.
2. User Content
2.1 User Content; TCPA Consent; Call Recording. "User Content" means any and all information and content that a user submits to, or uses with, GetMulch.com (e.g., content in postings). 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 personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. Some of this information may be sent to Mulch Providers as a means to respond to your request. By providing this information to us, or by otherwise submitting a request for services, you are deemed to be requesting, and you expressly consent to being contacted by a Mulch Providers or by us by phone, facsimile, email, mail, text messaging, or other reasonable means, at any of your contact numbers or addresses, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list, in order that we may facilitate the services set forth on the Site, to confirm, appointments that you have scheduled, or for other purposes reasonably related to your service request and our business, including marketing related emails. You also authorize GetMulch.com to send you an automated prerecorded call confirming your service request, along with calls from Mulch Providers that can help you with your request to the land-line or mobile phone number you provided, and you understand that either GetMulch.com or the Mulch Providers may use automated phone technology (including autodialed and prerecorded messages) to call you and that your consent is not required to purchase products or services. For complete details on our use of your information, please see our privacy statement. You agree that by completing a service request, you are entering into a business relationship with a Mulch Provider and thus agree to be contacted by GetMulch.com and/or a Mulch Provider. You promise that all information you provide (including but not limited to your contact information, and any Mulch Provider ratings or reviews that you provide) will be accurate, current and truthful to the best of your knowledge. You acknowledge and agree that GetMulch.com may monitor and/or record any telephone calls between you and GetMulch.com.
2.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company 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 and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in GetMulch.com. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
2.3 Acceptable Use Policy. The following terms constitute our "Acceptable Use Policy":
(a) You may not use GetMulch.com to recreate or compete with GetMulch.com. You agree not to use GetMulch.com to collect, upload, transmit, display, or distribute any User Content (i) 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; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through GetMulch.com any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through GetMulch.com 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; (iii) use GetMulch.com to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to GetMulch.com, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to GetMulch.com (or to other computer systems or networks connected to or used together with GetMulch.com), whether through password mining or any other means; (vi) harass or interfere with any other user's use and enjoyment of GetMulch.com; or (vii) use software or automated agents or scripts to produce multiple accounts on GetMulch.com, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) GetMulch.com (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from GetMulch.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
2.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
2.5 Feedback. If you provide Company with any feedback or suggestions regarding GetMulch.com ("Feedback"), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
3. Indemnification. You agree to indemnify and hold Company (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 (a) your use of GetMulch.com, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company 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 Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
4. Third-Party Links & Ads; Other Users
4.1 Third-Party Links & Ads. GetMulch.com may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, "Third-Party Links & Ads"). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, 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 Links & Ads.
4.2 Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. You agree that Company 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 user, we are under no obligation to become involved.
4.3 Our Content. GetMulch.com provides certain content relating to landscaping and mulch applications. Such content is provided "As-Is", without any warranties or representations, and you assume all liability and responsibility for your use of such content. You understand and agree that this content does not replace the advice of professionals and does not provide advice upon which you should independently rely.
4.4 Release. You hereby release and forever discharge the Company (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 that relates directly or indirectly to, GetMulch.com (including any interactions with, or act or omission of, other Site users or any Third-Party Links & 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."
5. Disclaimers
GETMULCH.COM IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL 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 GETMULCH.COM WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO GETMULCH.COM, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, GETMULCH.COM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, GETMULCH.COM IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). 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 OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use GetMulch.com. We may suspend or terminate your rights to use GetMulch.com (including your Account) at any time for any reason at our sole discretion, including for any use of GetMulch.com in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use GetMulch.com will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 10.
8. Copyright Policy.
Company respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is: Bulk Performance, LLC.
Address of Agent: 20 S. Main Stree, STE 240 Winter Garden, FL 34787
Telephone: 1 (407) 347-4487
Email: support@getmulch.com
9. General
9.1 Changes. These Terms are 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. 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. Any changes to these Terms 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. Continued use of our Site 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.
9.2 Dispute Resolution. Please read this Section 10.2 carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Section 10.2. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Section 10.2. BY USING GETMULCH.COM, YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT BY A JUDGE OR JURY. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Section 10.2 applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: [STREET], , [CITY], Florida [ZIP]. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules ("Arbitration Rules") governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location Lake County, Florida and may be conducted by teleconference. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney's fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Section 10.2. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 10.2 MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Section 10.2 are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Section 10.2 shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Section 10.2 may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Section 10.2.
(l) Survival of Agreement. This Section 10.2 will survive the termination of your relationship with Company.
(m) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 10.2.
(n) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark or trade secrets shall not be subject to this Section 10.2.
(o) Courts. In any circumstances where the foregoing Section 10.2 permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Orange County, Florida, for such purpose
9.3 Export. GetMulch.com may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
9.4 Disclosures. Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
9.5 Electronic Communications. The communications between you and Company or any Mulch Provider use electronic means, whether you use GetMulch.com or send us emails, or whether Company posts notices on GetMulch.com or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company 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.
9.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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 Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
9.7 Copyright/Trademark Information. Copyright © 2018 Bulk Performance, LLC. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on GetMulch.com 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.
9.8 Contact Information:
Bulk Performance, LLC.
20 S. Main Street, STE
Winter Garden, FL 34787
1 (407) 347-4487
support@getmulch.com