The Amber Hawken website is managed by AMH Coaching Pty Ltd
AMH COACHING PTY LTD ATF AMH COACHING TRUST ABN 19 125 805 929
Amber Hawken, Inc. (“AMH Coaching Pty Ltd,” “we,” “us,” or “our”) welcomes you.
We invite you to access and use our websites, including, without limitation, amberhawken.com (the “Websites”).
If you do not agree to any of these terms, then please do not use the Website or programs run under AMH Coaching Pty Ltd.
Any user who registers with us (each, a “Registered User”) and wishes to purchase a product or service through one of our Websites and associated company AMH Coaching Pty Ltd, is agreeing to the terms of this Agreement and the accompanying Terms and Conditions of Purchase with respect to such product or service.
In the event of any conflict between the terms of this Agreement and the Terms and Conditions of Purchase, the Terms and Conditions of Purchase shall control.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION AND USE OF OUR WEBSITES
We provide Visitors and Registered Users with access to the Services as described below.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Websites. No login is required for Visitors. Visitors can: (i) view all publicly-available content on the Websites; and (ii) email us.
Registered Users on our Website or AMH Kajabiplatform. Registered Users can do all the things that Visitors can do, and: (i) purchase products and services through one of our Websites; (ii) access exclusive content available only to Registered Users; (iii) create, access, manage, and update their own personal accounts on the Websites; (iv) post comments and other content on the Websites (collectively, “Registered User Content”); (v) sign up for our various programs; (vi) sign up for alerts and other notifications; and (vii) become part of the AMH Coaching Pty Ltd community.
AMH Coaching Pty Ltd is under no obligation to accept any individual as a Registered User and may accept or reject any registration in its sole and complete discretion.
2. COMMUNITY GUIDELINES
AMH Coaching Pty Ltd’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Websites, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
– You will comply with all applicable laws in your use of the Websites and will not use the Websites for any unlawful purpose;
– You will not upload, post, email, transmit, or otherwise make available any content that:
– infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
– is defamatory, libellous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
– discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information.
– You will not “stalk,” threaten, or otherwise harass another person;
– You will not spam or use the Websites to engage in any commercial activities;
– If you post any Registered User Content, you will stay on topic;
– You will not access or use the Websites to collect any market research for a competing business;
– You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
– You will not interfere with or attempt to interrupt the proper operation of the Websites through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Websites through hacking, password or data mining, or any other means;
– You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Websites;
– You will not use any robot, spider, scraper, or other automated means to access the Websites for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Websites 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;
– You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
– You will let us know about inappropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Websites, or any portion of the Websites, without notice, and to remove any content that does not adhere to these Community Guidelines.
The Websites are only available for individuals aged 16 years or older. If you are 16 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
4. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
During the registration process for Registered Users on the Website and or the third party AMH Kajabi Platform, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User, and sharing your access credentials with others (especially if they are using your credentials to access our proprietary Content (as defined below)) is a material breach of this Agreement. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Websites using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
5. FEES AND PAYMENT
As consideration for any purchase, you make on the Website, third-party platforms connected to Amber Hawken products or programs or directly with AMH Coaching Pty Ltd, you shall pay AMH Coaching Pty Ltd all applicable fees and taxes. We (or our third-party payment processor) shall authorize your credit card, bank account, or other approved payment facility you provided during the registration process for the full payment of the fees and any applicable taxes, and you hereby consent to the same. If the mailing address you provided us is in Australia all payments will be charged and made in AUD dollars. If the mailing address you provided us is outside Australia or any of its possessions or territories, all payments will be charged and made in your local currency.
You must provide current, complete, and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number, and expiration date) to keep your account current, complete, and accurate, and you must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password). You hereby authorize AMH Coaching Pty Ltd to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you to the same extent as the expired card. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
6. REFUND AND CANCELLATION POLICY
All refunds and cancellation procedures are in accordance with ACCC Consumer guidelines. Specific product and service related policies are listed below, however for all products and services, no refunds will be given for any fees and purchases if:
All sales are final. No refunds available after the sale has been completed or direct debit agreement has been electronically completed.
AMH agrees to allow the Customer to Access to the Program on the terms herein.
The Program is the accessible content currently located at the elected third party host and/or access to an online WhatApp group chat and Facebook group.
AMH will cause an invitation to be sent electronically to the Customer to allow it access to the WhatsApp group chat and Facebook group.
Access to the Program means AMH will provide log on details including a username and password to the website specified herein, a link to access a WhatsApp group and Facebook group to the Customer for as long as they pay the fees nominated by AMH.
The Customer will pay the fee nominated in writing by AMH to AMH prior to being allowed Access to the Program.
AMH will not provide Access to the Program to the Customer unless and until it receives in cleared funds a payment from the Customer of the fee nominated by AMH herein.
If the Customer fails to adhere to the Community Guidelines or fails to pay the fees nominated by AMH then AMH may, in its sole discretion, suspend or permanently remove the Customer’s access to the Program.
Access begins on and from the first day that AMH sends log on details to the Customer and continues for (amount of time).
AMH and retains the right to make any additions, subtractions, amendments or alterations to the Program and its contents for the purpose of updating or improving the Program. Whether an alteration, amendment, subtractions or additions is for the purpose updating or improving the Program is within the sole and absolute discretion of AMH.
The Customer must not share, communicate or otherwise distribute or disseminate the form, contents or essence of the Program to anyone without the prior written consent of AMH.
Customer may terminate this contract by sending written notice of such termination to email@example.com and upon receipt by AMH of that notification then the Customer’s access to the Program will be removed because the Customer has had the entire benefit of the Program from the first day of the Customer having access to the Program.
Tickets are not transferable for workshops or live events.
All retreats require a non-refundable $990 deposit in order to register. These policies are effective as of the time you submit your deposit or register for a retreat package –
All requests for transfers, refunds etc require written approval via firstname.lastname@example.org .
All coaching programs require a non-refundable deposit of $1,500 in order to begin. These policies are effective as of the time you submit your deposit or register for coaching –
The Book “Unfuckwithable”
The Customer will pay to AMH the price nominated by AMH at the time of ordering a book by the name of “Unfuckwithable” (“the book”).
AMH will do all things necessary as its own expense to cause the book to be sent to the address nominated by the Customer in a good and working condition.
AMH takes no responsibility and accepts no responsibility for the condition the book arrives in when the Customer receives it.
AMH does not guarantee any results whatsoever in respect of someone reading the book and implementing its contents. AMH does not accept any liability for the results that fall upon the Customer as a result of it reading the book and implementing its contents.
Before the Customer implements the contents of the book it should seek the advice of an appropriately qualified professional if they intend to do anything in reliance upon anything in the book that might affect their mental health, physical health or when, how and what food or drink they consume.
The Customer warrants and represents that they are at least 18 years old, have legal capacity to enter into contracts.
There are inherent risks in the activities described in the book which includes serious, permanent injury and death. People have been seriously injured in the past as a result of participating in the above activities. If the Customer participates in any of the above activities then they do so voluntarily assuming the risk to their health that those activities represent to that Customer. This clause serves as a bar to proceedings by the Customer against AMH or its employees, facilitators, staff, agents, assigns, volunteers, successors, offices or directors for any injury, loss or damage suffered by a Customer as a result of participating in the above activities. This clause also survives the termination of this contract.
AMH does not represent or warrant that it or its employees, facilitators, staff, agents, assigns, volunteers, successors, offices or directors have qualifications in medicine, mental health or nutrition.
AMH will not provide the Customer with any medical, nutritional or mental health advice. Anything said or done by AMH or its employees, facilitators, staff, agents, assigns, volunteers, successors, offices or directors that could be construed as medical, nutritional or mental health advice should only be relied upon by the Customer if they have first sought out the advice of an appropriately qualified professional.
The parties acknowledge that AMH, its representatives, agents, assigns, contractors, successors and facilitators are not providing mental health, medical or nutritional advice at any point. If anyone seeks to rely upon what AMH or its representatives, agents, assigns, contractors, successors or facilitators say in respect of any suggested medical, nutritional or other health related course of action then that person should seek out their own medical advice.
AMH will rely upon the above clause as its lack of warranty or representation in respect of it not providing mental health, medical or nutritional advice to anyone.
The laws of Queensland govern this contract and the parties submit to the exclusive jurisdiction of the courts of Queensland. No effluxion of time, action or omission shall be deemed or construed to be a waiver of any of AMH’s rights under this contract because such rights may only be waived in writing by AMH.
8. INTELLECTUAL PROPERTY
The Websites contain material, such as videos, coursework, lesson plans, training modules, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of AMH Coaching Pty Ltd (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both Australian and foreign laws. Unauthorised use of the Content may violate copyright, trademark, and other laws.
Visitors may view all publicly-available Content for their own personal, non-commercial use. Registered Users who have purchased any product or service, may download onto their own machines and view any Content contained in such purchased product or service for their own personal, non-commercial use. Other than as expressly set forth in the immediately two prior sentences, you have no other rights in or to the Content (other than your own Registered User Content that you post to the Websites), and you will not use the Content except as permitted under this Agreement. No other use is permitted without the prior written consent of AMH Coaching Pty Ltd. AMH Coaching Pty Ltd retains all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Websites automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of AMH Coaching Pty Ltd (the “AMH Coaching Pty Ltd Trademarks”) used and displayed on the Websites are registered and unregistered trademarks or service marks of AMH Coaching Pty Ltd. Other company, product, and service names located on the Websites may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with AMH Coaching Pty Ltd Trademarks, the “Trademarks”). Nothing on the Websites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of AMH Coaching Pty Ltd Trademarks inures to our benefit.
Elements of the Websites are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
9. REGISTERED USER CONTENT; LICENSES
As noted above, the Websites provides Registered Users the ability to post and upload Registered User Content. You expressly acknowledge and agree that once you submit your Registered User Content for inclusion into the Websites, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT AMH Coaching Pty Ltd, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR REGISTERED USER CONTENT THAT YOU UPLOAD, POST, EMAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITES.
You retain all copyrights and other intellectual property rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Websites, AMH Coaching Pty Ltd, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Registered User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Registered User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
If you submit Registered User Content to us, each such submission constitutes a representation and warranty to AMH Coaching Pty Ltd that such Registered User Content is your original creation (or that you otherwise have the right to provide the Registered User Content), that you have the rights necessary to grant the license to the Registered User Content under the prior paragraph, and that it and its use by AMH Coaching Pty Ltd and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
10. COMMUNICATIONS WITH US
Although we encourage you to email us, we do not want you to, and you should not, email us any content that contains confidential information. With respect to all emails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
11. NO WARRANTIES; LIMITATION OF LIABILITY
THE WEBSITES AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE WEBSITES WILL OPERATE ERROR-FREE OR THAT THE WEBSITES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES OR THE CONTENT SHALL BE LIMITED TO THE FEES YOU HAVE PAID US IN CONNECTION WITH ANY PURCHASES YOU HAVE MADE FROM US DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE WEBSITES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITES. THE WEBSITES MAY CONTAIN INFORMATION ON CERTAIN PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE WEBSITES DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AT ANY TIME WITHOUT NOTICE.
12. EXTERNAL SITES
The Websites may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
13. REPRESENTATIONS; WARRANTIES; AND INDEMNIFICATION
(a) If you are a Registered User, you hereby represent, warrant, and covenant that:
– You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your Registered User Content and any other works that you incorporate into your Registered User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
– Use of your Registered User in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
– You shall not submit to the Website any Registered User Content that violates our Community Guidelines set forth above or any other term of this Agreement.
(b) You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content or the Websites; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
14. COMPLIANCE WITH APPLICABLE LAWS
The Websites are based in Australia. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside ofAustralia. If you access the Websites or the Content from outside of Australia, you do so at your own risk. Whether inside or outside of the Australia, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
15. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Websites, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Websites at any time without prior notice or liability. The following sections shall survive any termination of this Agreement: “Fees and Payment” (until you pay all fees and taxes due hereunder), “Intellectual Property,” “Registered User Content; Licenses,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Representations; Warranties; and Indemnification,” “Termination of the Agreement,” “Controlling Law,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” and “Miscellaneous.”
16. DIGITAL MILLENNIUM COPYRIGHT ACT
AMH Coaching Pty Ltd respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
AMH Coaching Pty Ltd
PO Box 37
Old Burleigh Town
If you believe that your work has been copied on the Websites in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Websites where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and email address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
17. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of Queensland without regard to its conflict of laws provisions.
18. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Content, or the Websites (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules www.adr.org and Procedures and in accordance with the Expedited Procedures in those rules,or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Australian county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 18 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
19. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
20. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.