Terms of Service
Last revised on: March 21, 2025
The website located at www.benepicks.com (the “Site”)is a copyrighted work belonging to Benepicks, Inc. (“Company”, “us”, “our”, and “we”). Certain features of the Site may besubject to additional guidelines, terms, or rules, which will be posted on theSite in connection with such features. All such additional terms,guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS OF USE (THESE “TERMS”) SET FORTH THELEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. BYACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OFYOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THATYOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ONBEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESSOR USE THE SITE 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 ACCESSAND/OR USE THE SITE.
PLEASE BE AWARE THAT SECTION 10.2 CONTAINS PROVISIONSGOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS,SECTION 10.2 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITEDEXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDINGAND FINAL ARBITRATION. SECTION 10.2 ALSO CONTAINS A CLASS ACTION AND JURYTRIAL WAIVER. PLEASE READ SECTION 10.2 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEKRELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER INANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TOPARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOUARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURTOF LAW AND TO HAVE A JURY TRIAL.
1. Accounts
1.1 Account Creation. In order to use certain features of the Site, you mustregister for an account (“Account”) and provide certain informationabout yourself as prompted by the account registration form. Yourepresent and warrant that: (a) all required registration information yousubmit is truthful and accurate; (b) you will maintain the accuracy of suchinformation. You may delete your Account at any time, for any reason, byfollowing the instructions on the Site. Company may suspend or terminateyour Account in accordance with Section 8.
1.2 Account Responsibilities. You are responsible for maintaining theconfidentiality of your Account login information and are fully responsible forall activities that occur under your Account. You agree to immediatelynotify Company of any unauthorized use, or suspected unauthorized use of yourAccount or any other breach of security. Company cannot and will not beliable for any loss or damage arising from your failure to comply with theabove requirements.
2. Access to the Site
2.1 License. Subjectto these Terms, Company grants you a non-transferable, non-exclusive,revocable, limited license to use and access the Site solely for your ownpersonal, noncommercial use.
2.2 CertainRestrictions. The rights granted to you in these Terms aresubject to the following restrictions: (a) you shall not license, sell, rent,lease, transfer, assign, distribute, host, or otherwise commercially exploitthe Site, whether in whole or in part, or any content displayed on the Site;(b) you shall not modify, make derivative works of, disassemble, reversecompile or reverse engineer any part of the Site; (c) you shall not access theSite in order to build a similar or competitive website, product, or service;and (d) except as expressly stated herein, no part of the Site may be copied,reproduced, distributed, republished, downloaded, displayed, posted ortransmitted in any form or by any means. Unless otherwise indicated, anyfuture release, update, or other addition to functionality of the Site shall besubject to these Terms. All copyright and other proprietary notices onthe Site (or on any content displayed on the Site) must be retained on allcopies thereof.
2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue theSite (in whole or in part) with or without notice to you. You agree thatCompany will not be liable to you or to any third party for any modification,suspension, or discontinuation of the Site or any part thereof.
2.4 No Support orMaintenance. You acknowledge and agree that Company will have noobligation to provide you with any support or maintenance in connection withthe Site.
2.5 Ownership. Excluding any User Content that you may provide (defined below), youacknowledge that all the intellectual property rights, including copyrights,patents, trade marks, and trade secrets, in the Site and its content are ownedby Company or Company’s suppliers. Neither these Terms (nor your accessto the Site) transfers to you or any third party any rights, title or interestin or to such intellectual property rights, except for the limited accessrights expressly set forth in Section 2.1. Company and its suppliers reserveall rights not granted in these Terms. There are no implied licensesgranted under these Terms.
2.6 Feedback. If you provide Company with any feedback or suggestions regarding the Site (“Feedback”),you hereby assign to Company all rights in such Feedback and agree that Companyshall have the right to use and fully exploit such Feedback and relatedinformation in any manner it deems appropriate. Company will treat anyFeedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that youconsider to be confidential or proprietary.
3. UserContent
3.1 User Content. “User Content” means any and all information and content that a usersubmits to, or uses with, the Site (e.g., content in the user’s profile orpostings). You are solely responsible for your User Content. Youassume all risks associated with use of your User Content, including anyreliance on its accuracy, completeness or usefulness by others, or anydisclosure of your User Content that personally identifies you or any thirdparty. You hereby represent and warrant that your User Content does notviolate our Acceptable Use Policy (defined in Section 3.3). You may notrepresent or imply to others that your User Content is in any way provided,sponsored or endorsed by Company. Since you alone are responsible foryour User Content, you may expose yourself to liability if, for example, yourUser Content violates the Acceptable Use Policy. Company is not obligatedto backup any User Content, and your User Content may be deleted at any timewithout prior notice. You are solely responsible for creating andmaintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right togrant) 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 useand exploit your User Content, and to grant sublicenses of the foregoingrights, solely for the purposes of including your User Content in theSite. You hereby irrevocably waive (and agree to cause to be waived) anyclaims and assertions of moral rights or attribution with respect to your UserContent.
3.3 Acceptable UsePolicy. The following terms constitute our “Acceptable UsePolicy”:
(a) You agree not touse the Site to collect, upload, transmit, display, or distribute any UserContent (i) that violates any third-party right, including any copyright,trademark, patent, trade secret, moral right, privacy right, right ofpublicity, or any other intellectual property or proprietary right, (ii) thatis unlawful, harassing, abusive, tortious, threatening, harmful, invasive ofanother’s privacy, vulgar, defamatory, false, intentionally misleading, tradelibelous, pornographic, obscene, patently offensive, promotes racism, bigotry,hatred, or physical harm of any kind against any group or individual or isotherwise objectionable, (iii) that is harmful to minors in any way, or (iv)that is in violation of any law, regulation, or obligations or restrictionsimposed by any third party.
(b) In addition, you agreenot to: (i) upload, transmit, or distribute to or through the Site any computerviruses, worms, or any software intended to damage or alter a computer systemor data; (ii) send through the Site unsolicited or unauthorized advertising,promotional materials, junk mail, spam, chain letters, pyramid schemes, or anyother form of duplicative or unsolicited messages, whether commercial orotherwise; (iii) use the Site to harvest, collect, gather or assembleinformation or data regarding other users, including e-mail addresses, withouttheir consent; (iv) interfere with, disrupt, or create an undue burden onservers or networks connected to the Site, or violate the regulations, policiesor procedures of such networks; (v) attempt to gain unauthorized access to theSite (or to other computer systems or networks connected to or used togetherwith the Site), whether through password mining or any other means; (vi) harassor interfere with any other user’s use and enjoyment of the Site; or (vi) usesoftware or automated agents or scripts to produce multiple accounts on theSite, or to generate automated searches, requests, or queries to (or to strip,scrape, or mine data from) the Site (provided, however, that we conditionallygrant to the operators of public search engines revocable permission to usespiders to copy materials from the Site for the sole purpose of and solely tothe extent necessary for creating publicly available searchable indices of thematerials, but not caches or archives of such materials, subject to theparameters set forth in our robots.txt file).
3.4 Enforcement. the right (but have no obligation) to review, refuse and/or remove any User Content in our sole discretion, 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/orreporting you to law enforcement authorities.
4. Indemnification. You agree to indemnify and hold Company (and its officers,employees, and agents) harmless, including costs and attorneys’ fees, from anyclaim or demand made by any third party due to or arising out of (a) your useof the Site, (b) your violation of these Terms, (c) your violation ofapplicable laws or regulations or (d) your User Content. Company reservesthe right, at your expense, to assume the exclusive defense and control of anymatter for which you are required to indemnify us, and you agree to cooperatewith our defense of these claims. You agree not to settle any matterwithout the prior written consent of Company. Company will use reasonableefforts to notify you of any such claim, action or proceeding upon becomingaware of it.
5. Third-PartyLinks & Ads; Other Users
5.1 Third-PartyLinks & Ads. The Site may contain links to third-partywebsites and services, and/or display advertisements for third parties(collectively, “Third-Party Links & Ads”). Such Third-PartyLinks & Ads are not under the control of Company, and Company is notresponsible for any Third-Party Links & Ads. Company provides accessto these Third-Party Links & Ads only as a convenience to you, and does notreview, approve, monitor, endorse, warrant, or make any representations withrespect to Third-Party Links & Ads. You use all Third-Party Links& Ads at your own risk, and should apply a suitable level of caution anddiscretion 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 thirdparty’s privacy and data gathering practices. You should make whateverinvestigation you feel necessary or appropriate before proceeding with anytransaction in connection with such Third-Party Links & Ads.
5.2 OtherUsers. Each Site user is solely responsible for any and all ofits own User Content. Since we do not control User Content, youacknowledge and agree that we are not responsible for any User Content, whetherprovided by you or by others. We make no guarantees regarding theaccuracy, currency, suitability, appropriateness, or quality of any UserContent. Your interactions with other Site users are solely between youand such users. You agree that Company will not be responsible for any lossor damage incurred as the result of any such interactions. If there is adispute between you and any Site user, we are under no obligation to becomeinvolved.
5.3 Release. Youhereby release and forever discharge Company (and our officers, employees,agents, successors, and assigns) from, and hereby waive and relinquish, eachand 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 orarises directly or indirectly out of, or that relates directly or indirectlyto, the Site (including any interactions with, or act or omission of, otherSite users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIARESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTIONWITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMSWHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HISOR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HERMUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASEDPARTY.”
6. Disclaimers
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS,AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES ANDCONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALLWARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OURSUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BEAVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BEACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, ORSAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE,ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF FIRSTUSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIEDWARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOMEJURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. Limitationon Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALLCOMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSTPROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANYINDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGESARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE,THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK,AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTERSYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDINGANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGESARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESSOF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTYUS DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THISLIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KINDARISING FROM OR RELATING TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSIONOF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONOR EXCLUSION MAY NOT APPLY TO YOU.
8. Term andTermination. Subject to this Section, these Terms will remainin full force and effect while you use the Site. We may suspend orterminate your rights to use the Site (including your Account) at any time forany reason at our sole discretion, including for any use of the Site inviolation of these Terms. Upon termination of your rights under theseTerms, your Account and right to access and use the Site will terminateimmediately. You understand that any termination of your Account mayinvolve deletion of your User Content associated with your Account from ourlive databases. Company will not have any liability whatsoever to you forany termination of your rights under these Terms, including for termination ofyour Account or deletion of your User Content. Even after your rightsunder these Terms are terminated, the following provisions of these Terms willremain in effect: Sections 2.2 through 2.6, Section 3 and Sections 4 through10.
9. Copyright Policy.
Company respects the intellectual property of others andasks that users of our Site do the same. In connection with our Site, wehave adopted and implemented a policy respecting copyright law that providesfor the removal of any infringing materials and for the termination, inappropriate circumstances, of users of our online Site who are repeatinfringers of intellectual property rights, including copyrights. If youbelieve that one of our users is, through the use of our Site, unlawfully infringingthe copyright(s) in a work, and wish to have the allegedly infringing materialremoved, the following information in the form of a written notification(pursuant to 17 U.S.C. § 512(c)) must be provided to our designated CopyrightAgent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claimto have been infringed;
3. identification of the material on our services that youclaim is infringing and that you request us to remove;
4. sufficient information to permit us to locate suchmaterial;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use ofthe objectionable material is not authorized by the copyright owner, its agent,or under the law; and
7. a statement that the information in the notification isaccurate, and under penalty of perjury, that you are either the owner of thecopyright that has allegedly been infringed or that you are authorized to acton behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), anymisrepresentation of material fact (falsities) in a written notificationautomatically subjects the complaining party to liability for any damages,costs and attorney’s fees incurred by us in connection with the writtennotification and allegation of copyright infringement.
10. General
10.1 Changes. These Terms are subject to occasional revision, and if we make any substantialchanges, we may notify you by sending you an e-mail to the last e-mail addressyou provided to us (if any), and/or by prominently posting notice of thechanges on our Site. You are responsible for providing us with your mostcurrent e-mail address. In the event that the last e-mail address thatyou have provided us is not valid, or for any reason is not capable ofdelivering to you the notice described above, our dispatch of the e-mailcontaining such notice will nonetheless constitute effective notice of thechanges described in the notice. Continued use of our Site followingnotice of such changes shall indicate your acknowledgement of such changes andagreement to be bound by the terms and conditions of such changes.
10.2 DisputeResolution. Please read the following arbitration agreement inthis Section (the “Arbitration Agreement”) carefully. It requiresyou to arbitrate disputes with Company, its parent companies, subsidiaries,affiliates, successors and assigns and all of their respective officers,directors, employees, agents, and representatives (collectively, the “CompanyParties”) and limits the manner in which you can seek relief from theCompany Parties.
(a) Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Company Parties relating in any way to the Site, the services offered on the Site (the “Services”) or these Terms will be resolved by binding arbitration, rather than in court, except that (1) you and the Company Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the Company Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of these Terms and shall apply, without limitation, to all claims that arose or were asserted before you agreed to these Terms (in accordance with the preamble) or any prior version of these Terms. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Company Parties on your behalf. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of these Terms.
(b) Informal Dispute Resolution. There might be instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Company therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to: support@benepicks.com, or by regular mail to 1037 NE 65th St, Suite 82579, Seattle, Washington 98115. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
(c) Arbitration Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within 60days after receipt of your Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under$250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/;all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.JAMS’s rules are also available at www.jamsadr.com orby calling JAMS at 800-352-5267. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars;(4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Company otherwise agree, or the Batch Arbitration process discussed in Subsection 10.2(h) is triggered, the arbitration will be conducted in the county where you reside. Subject to the JAMS Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Rules.
You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
(d) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class or Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class or Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2)except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3)all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
(e) Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 10.2(A) YOUAND THE COMPANY PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TOSUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Company Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 10.2(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(f) Waiver of Class or Other Non-Individualized Relief. YOU AND COMPANYAGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 10.2(H) EACH OF US MAYBRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS,REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TOHAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON ACLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEFIS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BEARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Subsection 10.2(h) entitled “Batch Arbitration. ”Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class or Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief),you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Washington. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Company from participating in a class-wide settlement of claims.
(g) Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
(h) BatchArbitration. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are 100 or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a 30 day period (or as soon as possible thereafter), the JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator,and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantiallysimilar nature” if they arise out of or relate to the same event or factualscenario and raise the same or similar legal issues and seek the same orsimilar relief. To the extent the parties disagree on the application of theBatch Arbitration process, the disagreeing party shall advise the JAMS, and theJAMS shall appoint a sole standing arbitrator to determine the applicability ofthe Batch Arbitration process (“Administrative Arbitrator”). In an effortto expedite resolution of any such dispute by the Administrative Arbitrator,the parties agree the Administrative Arbitrator may set forth such proceduresas are necessary to resolve any disputes promptly. The AdministrativeArbitrator’s fees shall be paid by Company.
You and Company agree to cooperate in good faith with theJAMS to implement the Batch Arbitration process including the payment of singlefiling and administrative fees for batches of Requests, as well as any steps tominimize the time and costs of arbitration, which may include: (1) theappointment of a discovery special master to assist the arbitrator in theresolution of discovery disputes; and (2) the adoption of an expedited calendarof the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims underany circumstances, except as expressly set forth in this provision.
(i) 30-Day Right to Opt Out. You have the right to opt out of the provisions ofthis Arbitration Agreement by sending a timely written notice of your decisionto opt out to the following address: 1037 NE 65th St, Suite 82579, Seattle,Washington 98115, or email to support@benepicks.com, within 30 days after firstbecoming subject to this Arbitration Agreement. Your notice must include yourname and address and a clear statement that you want to opt out of thisArbitration Agreement. If you opt out of this Arbitration Agreement, all otherparts of these Terms will continue to apply to you. Opting out of thisArbitration Agreement has no effect on any other arbitration agreements thatyou may currently have with us, or may enter into in the future with us.
(j) Invalidity, Expiration. Except as provided in the subsection entitled “Waiver ofClass or Other Non-Individualized Relief”, if any part or parts of thisArbitration Agreement are found under the law to be invalid or unenforceable,then such specific part or parts shall be of no force and effect and shall besevered and the remainder of the Arbitration Agreement shall continue in fullforce and effect. You further agree that any Dispute that you have with Companyas detailed in this Arbitration Agreement must be initiated via arbitrationwithin the applicable statute of limitation for that claim or controversy, orit will be forever time barred. Likewise, you agree that all applicablestatutes of limitation will apply to such arbitration in the same manner asthose statutes of limitation would apply in the applicable court of competentjurisdiction.
(k) Modification. Notwithstandingany provision in these Terms to the contrary, we agree that if Company makesany future material change to this Arbitration Agreement, you may reject thatchange within 30 days of such change becoming effective by writing Company atthe following address: 1037 NE 65th St, Suite 82579, Seattle, Washington 98115,or email to support@benepicks.com. Unless you reject the change within 30days of such change becoming effective by writing to Company in accordance withthe foregoing, your continued use of the Site and/or Services, including theacceptance of products and services offered on the Site following the postingof changes to this Arbitration Agreement constitutes your acceptance of anysuch changes. Changes to this Arbitration Agreement do not provide you with anew opportunity to opt out of the Arbitration Agreement if you have previouslyagreed to a version of these Terms and did not validly opt out of arbitration.If you reject any change or update to this Arbitration Agreement, and you werebound by an existing agreement to arbitrate Disputes arising out of or relatingin any way to your access to or use of the Services or of the Site, anycommunications you receive, any products sold or distributed through the Site,the Services, or these Terms, the provisions of this Arbitration Agreement asof the date you first accepted these Terms (or accepted any subsequent changesto these Terms) remain in full force and effect. Company will continue to honorany valid opt outs of the Arbitration Agreement that you made to a priorversion of these Terms.
10.3 Export. TheSite may be subject to U.S. export control laws and may be subject to export orimport regulations in other countries. You agree not to export, reexport, ortransfer, directly or indirectly, any U.S. technical data acquired fromCompany, or any products utilizing such data, in violation of the United Statesexport laws or regulations.
10.4 Disclosures. Company is located at the address in Section 10.8. If you are a Californiaresident, you may report complaints to the Complaint Assistance Unit of theDivision of Consumer Product of the California Department of Consumer Affairsby contacting them in writing at 400 R Street, Sacramento, CA 95814, or bytelephone at (800) 952-5210.
10.5 ElectronicCommunications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site 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.
10.6 Entire Terms. TheseTerms constitute the entire agreement between you and us regarding the use ofthe Site. Our failure to exercise or enforce any right or provision of theseTerms shall not operate as a waiver of such right or provision. The sectiontitles in these Terms are for convenience only and have no legal or contractualeffect. The word “including” means “including without limitation”. If anyprovision of these Terms is, for any reason, held to be invalid orunenforceable, the other provisions of these Terms will be unimpaired and theinvalid or unenforceable provision will be deemed modified so that it is validand enforceable to the maximum extent permitted by law. Your relationshipto Company is that of an independent contractor, and neither party is an agentor partner of the other. These Terms, and your rights and obligationsherein, may not be assigned, subcontracted, delegated, or otherwise transferredby you without Company’s prior written consent, and any attempted assignment,subcontract, delegation, or transfer in violation of the foregoing will be nulland void. Company may freely assign these Terms. The terms andconditions set forth in these Terms shall be binding upon assignees.
10.7 Copyright/TrademarkInformation. Copyright © 2024 Benepicks, Inc. . All rightsreserved. 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 orthe consent of such third party which may own the Marks.
10.8 Contact Information:
Benepicks, Inc
Address:
1037 NE 65th St
Suite 82579
Seattle, Washington 98115
Email: support@benepicks.com