Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the http://agileelement.com website (the “Website”) operated by Agile Element LLC (“Agile Element”, “us”, “we”, “our”).
Your access to and use of Website is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access and use Website.
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN SECTION 10.
We, along with our corporate affiliates and other licensors own all of the texts, images, software, trademarks, service marks or other material displayed on our Website. By accessing or using our Website, you agree not to copy or transmit any of the material except for your personal, non-commercial use. All copyright, trademark and other proprietary rights and notices presented on our Website must appear on all copies you print. Other non-Agile Element products, services, or company designations on our Website belong to those respective third parties and may be mentioned on our website for identification purposes only. You should contact the appropriate third party for more information regarding such designations and their registration status. Your use and access of our Website does not grant you any license or right to use any of the marks included on our Website.
We may terminate or suspend access to our Website immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.
All provisions of the Terms, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Your access and use of our Website is conditioned upon your acceptance of our Terms. You will be responsible for all use of our Website by you, anyone using your password and login information, IP address, or credentials (with or without your permission) and anyone whom you allow to access any and all of your devices having the capacity to access the Internet. All information that you provide to us must be accurate and up-to-date (if applicable). If any of your information changes, you must immediately update it. If you have reason to believe that your account is no longer secure (e.g., loss, theft or unauthorized disclosure or use of your information or computer or mobile device used to access our Website), you must promptly change your personal information that is affected.
Our Website, all content and services provided on our Website and all information you obtain via our Website are provided on an “as is” basis. Agile Element expressly disclaims to the fullest extent permissible all warranties of any kind, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and security and accuracy, as well as all warranties arising by usage of trade, course of dealing, or course of performance.
We may change the Website and these Terms at any time, in our sole and absolute discretion and without notice to you. You are responsible for remaining knowledgeable about these Terms. Your continued use of our Website constitutes your acceptance of any changes or modifications to our Terms and any changes will supersede all previous versions of the Terms. Unless otherwise specified herein, all changes to these Terms apply to all users, including those who used the Website before the date the changes take effect.
Nothing contained in these Terms shall be deemed to constitute either party as the agent of the other party or both parties as joint venturers or partners for any purpose.
We (together with our officers, directors, employees, representatives, shareholders, affiliates, and providers) to the extent permitted by law hereby expressly exclude any responsibility and liability for (a) any loss or damages to, or viruses that may infect, your computer equipment or other property as the result of your access to our Website, your downloading of any content from our Website; (b) any injury, death, loss, claim, act of god, accident, or any direct, special, exemplary, punitive, indirect, incidental or consequential damages of any kind (including without limitation lost profits or lost savings), whether based in contract, tort, strict liability or otherwise, that arise out of or is in any way connected with: (i) any use of our Website or our content; (ii) any failure (including without limitation the use of or inability to use any component of this Website for any reason); or (iii) the performance or non-performance by us or any of our affiliates even if we have been advised of the possibility of damages to such parties or any other party. Some states or countries do not allow this limitation of liability, so the limitations above may not apply or apply only partially to you.
Subject to these Terms, you will defend, indemnify and hold us and each of our officers, directors, employees, agents, and affiliates harmless from and against any claim, cause of action, liability, expense, loss or demand, including without limitation reasonable legal and accounting fees, arising out of, or in any way connected with your breach of these Terms or the agreements made part of these Terms by reference, your breach of any applicable law, and your use of or access to our Website, or the intellectual property displayed on our Website.
You agree that by accepting the Terms, you and Agile Element are each waiving the right to trial by jury and the ability to participate in a class action. ANY AND ALL DISPUTES AGILE ELEMENT OR YOU HAS RELATING IN ANY WAY TO THE WEBSITE OR YOUR RELATIONSHIP WITH AGILE ELEMENT (INCLUDING, WITHOUT LIMITATION WITH RESPECT TO DATA, YOUR INTERACTION WITH AGILE ELEMENT, AGILE ELEMENT’S ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES AGILE ELEMENT SENDS TO YOU, OR THE USE OR DISCLOSURE OF ANY INFORMATION ABOUT YOU), THESE TERMS, AND PRIVACY POLCY (COLLECTIVELY, “CLAIMS”) WILL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, EXCEPT TO THE EXTENT THAT YOU HAVE, IN ANY WAY, VIOLATED OR THREATENED TO VIOLATE ANY COMPANY INTELLECTUAL PROPERTY RIGHT. CLAIMS INCLUDE CLAIMS BASED ON CONTRACT, TORT (INCLUDING INTENTIONAL TORT), FRAUD, AGENCY, YOUR OR AGILE ELEMENT’S NEGLIGENCE, STATUTORY OR REGULATORY PROVISIONS, OR ANY OTHER SOURCE OF LAW.
If you intend to seek arbitration you must first send to Agile Element, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Agile Element must be sent to 1 E Broward Blvd., Fort Lauderdale, FL 33301. The Notice shall describe the nature and basis of the claim or disputes and the specific relief sought. If parties are unable to reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Agile Element may commence arbitration. All arbitrations required by these Terms will be conducted under the Commercial Arbitration rules of the American Arbitration Association. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration brought under, or with respect to, Claims is to be joined to an arbitration involving any other party subject to these Terms whether through class arbitration proceedings or otherwise. Unless Agile Element and you agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative, private attorney general or class proceeding.
For arbitration claims you assert against Agile Element in accordance with this section (but not for any arbitration claim against you) Agile Element will pay all of your administrative, hearing, and arbitrator’s fees and costs for the arbitration (but not the fees, expenses, and costs of your lawyers, experts, or witnesses) in excess of any filing fee you would have been required to pay to file the claim as a lawsuit in a state or federal court (whichever is greater) in the judicial district in which you reside. Unless unlawful, Agile Element will pay its, and you will pay your, lawyers’, experts’, and witness fees, expenses, and costs with respect to all claims. The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Similarly, an arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by all parties.
TO THE EXTENT PERMITTED BY LAW, YOU WILL NOT AGREE TO ACT AS A REPRESENTATIVE OR A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT AGAINST AGILE ELEMENT IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY CLAIMS. THIS SECTION WILL SURVIVE THE TERMINATION OF THE RELATIONSHIP BETWEEN YOU AND AGILE ELEMENT, INCLUDING ANY AND ALL DISPUTES AGILE ELEMENT OR YOU HAS RELATING IN ANY WAY TO THE WEBSITE OR YOUR RELATIONSHIP WITH AGILE ELEMENT.
If we fail to act with respect to your breach or anyone else's breach on any occasion, we are not waiving our right to act with respect to future or similar breaches, regardless of the length of time for which such failure continues. Such failure shall not be construed as consent or waiver, express or implied, to your breach or anyone else’s breach of these terms, and Agile Element retains the right to demand strict compliance and/or seek any and all remedies available in law or equity.
Any and all disputes, claims and controversies arising out of or in connection with your access to, and/ or use of the Website shall be governed by and construed exclusively in accordance with the laws of the state of Florida, excluding Florida’s conflict of law provision and Florida’s choice of law provision. Any dispute or other legal action arising out of, arising under, or in any way connected with these Terms, including arbitration or (should the arbitration provision fail) litigation proceedings, shall be brought exclusively in Broward County, Florida and each party hereto irrevocably submits to the exclusive jurisdiction of those courts for purposes of any such proceeding.
Whenever possible, each provision of these Terms shall be interpreted in such manner as to be effective and valid under applicable law, and if any provision of these Terms is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, and these Terms will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein.
These Terms constitute the final, complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof, and supersedes and merges into itself any and all other prior and contemporaneous negotiations, e-mails, communications, agreements and understandings, both written and oral, between the parties.