SUBJECT TO THE TERMS AND CONDITIONS BELOW, BY VISITING, ACCESSING, OR USING THE WEBSITE OR ORDERING, PURCHASING, OR USING THE PRODUCTS OFFERED ON THE WEBSITE IN ANY WAY, YOU AGREE TO ALL TERMS AND CONDITIONS OF THE “TERMS OF SERVICE AGREEMENT” AND EXECUTE SUCH AGREEMENT AS THOUGH YOU HAD VALIDLY AFFIXED YOUR SIGNATURE TO IT.
This Terms of Service Agreement (the “Agreement”) is made by and between the person reading this text (“you” or “your”) and Indiana Blade Works LLC, an Indiana limited liability company (“Indiana Blade Works” or “we” or “our” or “us”). In order to access the webpage www.indianabladeworks.com and all content contained or offered within or in relation to such webpage (collectively, the “Website”), you must read and agree to every term and condition of this Agreement. This Agreement is effective on the date you first access the Website (the “Effective Date”), and the term of the Agreement shall begin on the Effective Date and continue until terminated as expressly provided in this Agreement (from Effective Date to termination, the “Term”). Throughout the Agreement, you and Indiana Blade Works may occasionally be referred to individually as a “party” and collectively as the “parties.”
In consideration of the mutual agreements and promises contained throughout this Agreement, and other good and valuable consideration the receipt and sufficiency of which is acknowledged by the parties, you and Indiana Blade Works, intending to be legally bound, agree as follows:
- Introduction and Important Provisions.
(a) The Website permits users like you to purchase and order certain goods (the “Products”) in accordance with the terms and conditions of this Agreement. While each and every word of this Agreement is important and legally binding on both you and Indiana Blade Works, parts of this Agreement that are bolded, underlined, italicized, entirely capitalized, and/or that have a larger size font, are especially substantial and highly significant; as such, you should thoroughly and judiciously review all such provisions and ensure you completely understand their meaning and legal effect.
(b) The terms defined throughout this Agreement have the meanings that are assigned to them. [Any term that appears like this – “Example” – is a defined term; therefore, all other uses of the capitalized term Example anywhere in the Agreement would carry the definition that was assigned to it where the term was originally defined.]
- Legally Binding Contract.
(a) PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND INDIANA BLADE WORKS. BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THIS TERMS OF SERVICE AGREEMENT IN ITS ENTIRETY. IF YOU CHOOSE TO ACCEPT THIS AGREEMENT, YOU MUST DO SO AS THE AGREEMENT IS WRITTEN AND AMENDED, WITHOUT ANY OTHER MODIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THIS TERMS OF SERVICE AGREEMENT, YOU MUST DISCONTINUE YOUR USE OF THE WEBSITE IMMEDIATELY AND YOU MUST NOT ORDER ANY PRODUCTS WHATSOEVER FROM INDIANA BLADE WORKS. ACCESS AND USE OF THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, THE ORDERING OF PRODUCTS FROM THE WEBSITE, INDICATES YOUR EXECUTION OF THE AGREEMENT AND YOUR PROMISE TO ABIDE BY EACH AND EVERY TERM AND CONDITION OF THE AGREEMENT AS IT IS WRITTEN AND AMENDED.
(b) YOU REPRESENT, WARRANT, AND AFFIRM THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AS AN INDIVIDUAL OR ON BEHALF OF YOUR EMPLOYER OR PRINCIPAL.
(c) You agree that any purchase of Products from Indiana Blade Works, and all other Website transactions and interactions, will be governed solely by this Agreement. You promise and affirm that no other representations, warranties, or promises (whether written or oral) have been made to you by Indiana Blade Works other than the representations, warranties, and promises contained throughout this Agreement. With respect to Indiana Blade Works obligations, you agree to rely ONLY on the representations, warranties, and promises contained throughout this Agreement.
(a) We accept PayPal, Visa, Mastercard, Discover, and American Express. By ordering with a credit card you agree that you are authorized to use such credit card and, if there is a billing dispute, to handle any billing disputes directly with us. By ordering with a PayPal account you agree that you are authorized to use such account.
(b) Indiana Blade Works reserves the right to request identification for any purchases of any kind. You are not obligated to provide identification; however, failure to provide requested information may result in the cancellation of your order. If you have already paid for your order and we determine it must be cancelled, you are entitled to receive a refund, subject to the terms of this Agreement.
- Age Restrictions on Orders.You must be at least 18 years old to order any knife products and at least 21 years old to order certain restricted products. Restricted products may be marked or otherwise indicated on the Website to help better inform our customers; if any restricted products are not marked, we shall require identification prior to the completion of your order. Failure to provide such identification may lead to the cancellation of your order. Some items on the website may be illegal in your or other areas for possession by those under the age of 21 or, in some cases, for any person. You are solely responsible to check all applicable international, Federal, State, and local laws concerning the purchase, ownership, use, and possession of any Products that you wish to purchase on the Website.
- Change and Cancellation of Orders.
(a) If you order the wrong Products, you may request a change of your order by emailing firstname.lastname@example.org with the phrase “change order” in the subject line and a thorough description of your request in the body. Indiana Blade Works will strive to change orders to the satisfaction of our users as frequently as we can. We may reject such requests if they are unreasonable, in our sole discretion.
(b) If you wish to cancel your order, you may request such cancellation by emailing email@example.com with the phrase “order cancellation” in the subject line and a thorough description of the order you wish to cancel in the body. Indiana Blade Works will strive to cancel orders to the satisfaction of our users as frequently as we can. We may reject such requests if they are unreasonable, in our sole discretion.
Third Party Links. The Website may contain links or references to third-party materials that are not owned or controlled by Indiana Blade Works. Indiana Blade Works does not endorse or assume any responsibility for any such third party sites, information, materials, goods, or services. If you access a third party website or service, you do so at your own risk. Additionally, you expressly relieve Indiana Blade Works from any and all liability arising from or in connection with, and agree to hold Indiana Blade Works harmless with respect to, your use of any third party website, service, good, or content.
Purpose and Intellectual Property.
(a) You may ONLY use the Website and purchase Products FOR LEGAL PURPOSES (the “Purpose”). You are responsible for educating yourself on all Federal laws that affect you and on the specific State and local laws of your jurisdiction that affect you, as such laws and regulations relate to the Website and Products. You represent, warrant, and promise to Indiana Blade Works that you have educated yourself as such through whatever means necessary (including, but not limited to, by hiring and consulting with independent and knowledgeable legal counsel prior to executing this Agreement) and that you shall use the Website and purchase Products only for the Purpose.
(b) You shall not copy, modify, creative derivate works of, or reverse-engineer, in whole in or part, Indiana Blade Works’ (i) Website, including its components or contents, in whole or part, (ii) Products, or (iii) trademarks, service marks, trade dress, patents, pending patents, copyrights, trade secrets, and other intellectual property, including, but not limited to, photographic images (Subsections (i), (ii), and (iii) collectively, the “Intellectual Property”).
(c) Except as expressly stated in this Agreement, Indiana Blade Works does not grant you any license or ownership rights whatsoever, including, but not limited to, in the Website or in the Intellectual Property. All rights not expressly granted by Indiana Blade Works to you under this Agreement are expressly reserved to Indiana Blade Works.
(d) You should assume that everything you see or read on the Website is copyrighted unless otherwise noted and may not be used except as provided in this Agreement or in the text on the Website without the prior written permission of Indiana Blade Works. Indiana Blade Works neither warrants nor represents that your use of materials displayed on the Website will not infringe rights of third parties not owned by or affiliated with Indiana Blade Works, and you shall indemnify and hold Indiana Blade Works harmless in that regard.
- Prohibited Conduct. All of the following conduct listed in this Section is strictly prohibited and may result, with or without notice to you, in immediate and permanent denial of use of the Website and/or the enforcement of rights and remedies against you, including, but not limited to, the seeking against you by Indiana Blade Works of any and all direct, indirect, consequential, incidental, special, exemplary, and punitive damages (any of the foregoing which may include, without limitations, compensation for loss of profits and loss of business value). You agree that you shall not engage in any such prohibited conduct, which is as follows:
(a) using the Website or the Products to harass, intimidate, embarrass, or threaten any person, or for any graphic, libelous, obscene, or pornographic purpose;
(b) using the Website or the Products in furtherance of any illegal or fraudulent activity, or in violation of any international, Federal, State, or local laws or regulations;
(c) “spamming” – that is, rapidly sending messages over and over with the intent to cause an annoyance, slow service within, or otherwise negatively affect performance of – the Website;
(d) using any automated system, including, but not limited to, “robots”, “spiders”, and “offline readers”, to access or manipulate the Website;
(e) copying, distributing, or disclosing, without authorization, any part of the Website in any medium, including, but not limited to, by any automated or non-automated “scraping”;
(f) attempting to interfere with or compromise the system integrity or security, or attempting to decipher any transmissions to or from the servers running the Website;
(g) taking any action that imposes, or may impose (at Indiana Blade Works’ sole discretion) an unreasonable or disproportionately large load on the infrastructure of the Website;
(h) uploading or causing to be uploaded to the Website any malicious or detrimental application of any variety, including, but not limited to, viruses, worms, malware, spyware, invalid or misleading data, Trojan horses, malicious code, back doors, time bombs, and other software routines or hardware components designed to permit unauthorized access; to harm software, hardware, or data; to cause damage to the Website or any users or affiliates of the Website; or to perform any action similar to the foregoing actions listed in this Subsection;
(i) collecting or harvesting, causing the collection or harvesting of, or assisting in the collection or harvesting of, any “Personal Information” (defined below) of any person or user of the Website;
(j) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, or providing misleading or materially inaccurate Personal Information (including, but not limited to, providing misleading information about your geographic location, age, or criminal history);
(k) accessing any content on the Website through any technology or means other than those provided or authorized by Indiana Blade Works;
(l) bypassing or assisting in the bypass of the measures Indiana Blade Works may use to prevent or restrict access to the Website or Products;
(m) copying, modifying, creating derivative works of, or reverse-engineering the Website, the Intellectual Property, or any portion thereof in either case;
(n) improperly copying, distributing, using, reverse-engineering, infringing upon Indiana Blade Works’ rights in connection with, or otherwise improperly intermingling with, the Intellectual Property, or any third-party intellectual property displayed or hosted on the Website;
(o) violating, misappropriating, or infringing upon the rights of any third-party in connection with your accessing or use of the Website or Products;
(p) otherwise interfering with the proper workings of the Website or the business intended to be conducted through the Website, or knowingly and materially breaching the terms and conditions of this Agreement, or anticipatorily repudiating this Agreement, or attempting to cause unjustified material harm to Indiana Blade Works or its assigns, successors, agents, principals, or representatives in any way; and
(q) planning or conspiring to commit, or assisting or aiding any person or entity in committing, any of the acts listed throughout each of the foregoing Subsections to this Section.
9. Federal Law. The Switchblade Act, (codified in 15 U.S.C. §§ 1241–1245), as may be amended (the “Act”) in part regulates so-called “switchblade knives”. This Section of the Agreement is a short summary and review of the Act and is current as of October 1st, 2016; it is your sole responsibility to check for amendments to the Act and to obtain the counsel of an independent licensed attorney to assist in your interpretation of relevant Federal law. It is your sole responsibility to follow all Federal law, including, but not limited to, the Act. Indiana Blade Works shall not be responsible or liable for acts or omissions of yours which violate Federal law. You agree to indemnify and fund the defense of Indiana Blade Works for any and all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by Indiana Blade Works and its agents, attorneys, successors, assigns, officers, interest-holders, and representatives as a result of your violation of Federal law; furthermore, you agree to hold Indiana Blade Works harmless for all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by you resulting from or connected in any way with your use of or interaction with the Website and/or the Products in violation of Federal law.
15 U.S.C. § 1241 defines “switchblade knife” for purposes of the Act as “any knife having a blade which opens automatically (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both”, and defines “interstate commerce” for purposes of the Act as “commerce between any State, Territory, possession of the United States, or the District of Columbia, and any place outside thereof.”
15 U.S.C. § 1242 states, “Whoever knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife, shall be fined not more than $2,000 or imprisoned not more than five years, or both.”
15 U.S.C. § 1243 states, “Whoever, within any Territory or possession of the United States, within Indian country (as defined in section 1151 of Title 18), or within the special maritime and territorial jurisdiction of the United States (as defined in section 7 of Title 18), manufactures, sells, or possesses any switchblade knife, shall be fined not more than $2,000 or imprisoned not more than five years, or both.”
15 U.S.C. § 1244 creates exceptions to 15 U.S.C. §§ 1242-1243, and states, “Sections 1242 and 1243 of this title shall not apply to--
(1) any common carrier or contract carrier, with respect to any switchblade knife shipped, transported, or delivered for shipment in interstate commerce in the ordinary course of business;
(2) the manufacture, sale, transportation, distribution, possession, or introduction into interstate commerce, of switchblade knives pursuant to contract with the Armed Forces;
(3) the Armed Forces or any member or employee thereof acting in the performance of his duty;
(4) the possession, and transportation upon his person, of any switchblade knife with a blade three inches or less in length by any individual who has only one arm; or
(5) a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.”
15 U.S.C. § 1245 states, “(a) Whoever in or affecting interstate commerce, within any Territory or possession of the United States, within Indian country (as defined in section 1151 of Title 18), or within the special maritime and territorial jurisdiction of the United States (as defined in section 7 of Title 18), knowingly possesses, manufactures, sells, or imports a ballistic knife shall be fined as provided in Title 18, or imprisoned not more than ten years, or both.
(b) Whoever possesses or uses a ballistic knife in the commission of a Federal crime of violence shall be fined as provided in Title 18, or imprisoned not less than five years and not more than ten years, or both.
(c) The exceptions provided in paragraphs (1), (2), and (3) of section 1244 of this title with respect to switchblade knives shall apply to ballistic knives under subsection (a) of this section.
(d) As used in this section, the term ‘ballistic knife’ means a knife with a detachable blade that is propelled by a spring-operated mechanism.”
INDIANA BLADE WORKS WILL NOT SELL TO ANY INDIVIDUAL OR GROUP OUTSIDE THE STATE OF INDIANA IF WE RECOGNIZE THAT SUCH A SALE WOULD BE IN VIOLATION OF ANY FEDERAL LAW OR REGULATION, OR ANY LAW OR REGULATION OF THE STATE WHERE YOU RESIDE. PROPER IDENTIFICATION WILL BE REQUIRED BEFORE THE ORDER IS SHIPPED IN CASES WHERE REGULATED ITEMS ARE PURCHASED. WE RESERVE THE RIGHT TO CANCEL ORDERS THAT WOULD VIOLATE OR THAT WE REASONABLY SUSPECT MAY VIOLATE ANY LAW.
- Indiana Law. Law in the State of Indiana regulates certain types and certain uses of knives. This Section of the Agreement is a short summary and review of some of that Indiana State law, and is current as of October 1st, 2016; it is your sole responsibility to check for amendments and other relevant statutes, and to obtain the counsel of an independent licensed attorney to assist in your interpretation of relevant State and local law. If you are an Indiana resident, it is your sole responsibility to follow all Indiana law and local law, including, but not limited to, the laws quoted below. Indiana Blade Works shall not be responsible or liable for acts or omissions of yours which violate State or local law. You agree to indemnify and fund the defense of Indiana Blade Works for any and all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by Indiana Blade Works and its agents, attorneys, successors, assigns, officers, interest-holders, and representatives as a result of your violation of State or local law; furthermore, you agree to hold Indiana Blade Works harmless for all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by you resulting from or connected in any way with your use of or interaction with the Website and/or the Products in violation of State or local law.
Indiana Code 35-47-5-2 states, “It is a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a detachable blade that may be ejected from the handle as a projectile by means of gas, a spring, or any other device contained in the handle of the knife.”
Indiana Code 35-47-5-2.5 states,
“(a) As used in this section, “knife” means an instrument that:
(1) consists of a sharp edged or sharp pointed blade capable of inflicting cutting, stabbing, or tearing wounds; and
(2) is intended to be used as a weapon.
(b) The term includes a dagger, dirk, poniard, stiletto, switchblade knife, or gravity knife.
(c) A person who recklessly, knowingly, or intentionally possesses a knife on:
(1) school property (as defined in IC 35-31.5-2-285);
(2) a school bus (as defined in IC 20-27-2-8); or
(3) a special purpose bus (as defined in IC 20-27-2-10);
commits a Class B misdemeanor. However, the offense is a Class A misdemeanor if the person has a previous unrelated conviction under this section and a Level 6 felony if the offense results in bodily injury to another person.
(d) This section does not apply to a person who possesses a knife:
(A) the knife is provided to the person by the school corporation or possession of the knife is authorized by the school corporation; and
(B) the person uses the knife for a purpose authorized by the school corporation; or
(2) if the knife is secured in a motor vehicle.”
INDIANA BLADE WORKS WILL NOT SELL TO ANY INDIVIDUAL OR GROUP IF WE RECOGNIZE THAT SUCH A SALE WOULD BE IN VIOLATION OF ANY INDIANA STATE OR LOCAL LAW. PROPER IDENTIFICATION WILL BE REQUIRED BEFORE THE ORDER IS SHIPPED IN CASES WHERE REGULATED ITEMS ARE PURCHASED. WE RESERVE THE RIGHT TO CANCEL ORDERS THAT WOULD VIOLATE OR THAT WE REASONABLY SUSPECT MAY VIOLATE ANY LAW.
11. Shipping - Domestic Orders.
(a) Indiana Blade Works makes no guarantees about shipping time. We will attempt to stay within the specified time frames indicated on the Website; however, delays may result from occurrences, such as, without limitation, customer verification, declined credit cards, restricted items, legal prohibitions, product unavailability, acts of God, and other force majeure events. You agree to hold Indiana Blade Works harmless for shipping delays, regardless of cause.
(b) Indiana Blade Works, in its sole discretion, may determine who is responsible for shipping costs for various Products and users and under various promotions run from time to time. Regardless of who pays for shipping, risk of loss and title to the Products transfers to you upon our tender of the Products to the courier. However, you may send an email to firstname.lastname@example.org with the phrase “lost product refund” in the subject line and a description of your request in the body, and we will evaluate the circumstances and may provide you a refund in our sole discretion.
(c) There are some areas within the United States of America where we simply cannot legally ship certain restricted items (for example, certain types of knives such as automatic knives). These areas include, but are not limited to: portions of Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, New Mexico, New York, Tennessee, Texas, Vermont, Washington, and Wisconsin. Indiana Blade Works is under no obligation to fulfill orders where shipping would violate any Federal, State, or local laws, and may cancel such orders at will. Indiana Blade Works may choose, but is not required, to inform you of the reasons for such cancellations. If you have already paid for your order and we determine it must be cancelled, you are entitled to receive a refund, subject to the terms of this Agreement.
(d) In many cases, orders that are placed with a ship to address that is not authorized by the credit card issuer are subject to shipping delays, verification emails/telephone calls and/or cancellation. Additionally, orders that are shipped to an address other than the authorized billing address are subject to shipping delays and verifications. In situations where we cannot confirm the validity of an order or we suspect fraud, the order may be cancelled in our sole discretion.
(e) Indiana Blade Works shall not be responsible or liable for acts or omissions of yours which violate Federal, State, or local law. You agree to indemnify and fund the defense of Indiana Blade Works for any and all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by Indiana Blade Works and its agents, attorneys, successors, assigns, officers, interest-holders, and representatives as a result of any violation of Federal, State, or local law to which you materially contributed; furthermore, you agree to hold Indiana Blade Works harmless for all claims (including, but not limited to, both civil and criminal claims), damages, or losses of any kind suffered by you resulting from or connected in any way with your use of or interaction with the Website and/or the Products in violation of Federal, State, or local law.
12. International Orders.
Indiana Blade works will not ship or sell any items outside of the United States of America.
13. Representations and Warranties in Ordering. By placing an order, or otherwise obtaining Products, YOU REPRESENT, WARRANT, AND PROMISE that (i) you are using the Website and ordering the Products in compliance with all applicable Federal, State, and local laws and regulations, and to the extent necessary for you to comply as such and to remain in compliance, you have obtained the services of an experienced and duly licensed attorney in your state to assist you in understanding and meeting the requirements for legality of your purchases and actions with respect to the Website and Products (or you have voluntarily and intelligently waived the right to the counsel of an attorney if you are certain that you are in full compliance with the law); (ii) you will use, possess, store, and transact with the Products in a lawful manner; and (iii) you are of legal age in your jurisdiction to purchase, possess, and use the Products.
- Indemnification.You agree to indemnify, fund the defense of, and hold harmless Indiana Blade Works and its affiliates, employees, managers, members, officers, interest-holders, directors, agents, attorneys, representatives, contractors, insurers, successors, and assigns from and against all claims, demands, judgments, losses, liabilities, damages, costs, fees, expenses (including, but not limited to, attorneys’ fees, expert witness fees, and costs) arising out of your (i) use of the Website and Products, (ii) any breach of this Agreement by you, and (iii) any violation of international, Federal, State, or local law relating to, arising out of, or connected in any way with your interaction with the Website or your purchasing, possession, transportation, and use of the Products. Please be aware that other indemnification provisions are in place throughout this Agreement, and all such indemnification provisions are cumulative and are not exclusive of each other.
- Website Mistakes. You agree that Website mistakes (including, but not limited to, pricing errors, Product misinformation, and stock discrepancies) are inevitable, although Indiana Blade Works intends to make every effort to avoid and promptly correct any such mistakes. Indiana Blade Works is not required to honor pricing errors. At our sole discretion, we may cancel any order where we determine there has been a pricing error. If we have provided Product misinformation for your order, you have the right to request a return of your purchased Product without penalty, subject to the terms of this Agreement and the return policy stated within the Agreement. If there is a stock discrepancy, you have the right to retain your order until it can be filled or to cancel your order without penalty as long as your actions are reasonable under the circumstances.
- DMCA. It is the policy of Indiana Blade Works to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512 (“DMCA”). Notices of alleged copyright infringement should be (i) emailed to email@example.com with the words “copyright” or “DMCA” in the subject line and a description of the alleged infringement in the body, and/or (ii) mailed to Indiana Blade Works pursuant to the notice provisions of this Agreement and containing a description of the alleged infringement.
- Termination of Agreement and Survival of Provisions.
(a) You may terminate this Agreement at any time by doing both of the following: (1) delivering an email to firstname.lastname@example.org containing the phrase “terminate terms of service” or “terminate TOS” in the subject line of the email (or, alternatively, you may send such written notice of your intent to terminate to Indiana Blade Works, LLC at 2735 West 127th Place, Crown Point, Indiana, 46307), and (2) permanently refraining from accessing or using the Website thereafter. In such instance, your termination shall become effective fifteen (15) business days after the receipt of your email as described in Subsection (i) above. HOWEVER, failure by you to refrain from accessing the Website or Products will render your termination of the Agreement void; in other words, if you deliver a termination email or other written termination notice and subsequently thereafter access or use the Website or Products, you are, in such case, still bound by this Agreement and it will be as though your termination had no legal effect.
(b) Indiana Blade Works may immediately terminate this Agreement, for any reason or for no reason, by sending you any sort of communication (including, but not limited to, communication by email or regular mail) indicating termination of this Terms of Service Agreement. Such termination will be effective immediately when sent; however, unless the termination involves a legal or similar issue (in our sole discretion), Indiana Blade Works (in its sole discretion) may still ship all orders to you which you have already paid for. Alternatively, Indiana Blade Works, in our sole discretion, may provide you a full refund of the purchase price for any items you paid for but that will not be sent due to Indiana Blade Work’s termination of this Agreement, or for any other reason. Notwithstanding the preceding sentence, Indiana Blade Works reserves the right to, in its sole and reasonable discretion, to refuse to provide a refund (either partially or in full) of the purchase price of any of the Products if Indiana Blade Works has a good faith reason for doing so.
(c) Upon termination by either party, all rights granted to you under this Agreement, including your use of the Website, shall immediately terminate, and you will be prohibited from using the Website or purchasing Products.
(d) Notwithstanding the foregoing, all terms and conditions contained in Section 7 through Section 33 of this Agreement are continuous in nature and shall survive termination or expiration of this Agreement for the maximum “reasonable” amount of time permitted under law (although nothing in those terms and conditions will give you the right to use the Website or order Products after termination). Furthermore, all (i) representations, warranties, and covenants, and (ii) indemnification and hold harmless provisions, are continuous in nature and shall survive the expiration or termination of this Agreement for the maximum “reasonable” amount of time permitted under law.
(a) Subject to the terms of this Agreement, and specifically excluding provisions allowing notice to be sent through email, each party giving or making any written notice under this Agreement shall use one of the following methods of delivery: (i) personal delivery; or (ii) Registered or Certified Mail (in each case, return receipt requested and postage prepaid). Notice given by Indiana Blade Works shall be addressed to the address you list in your Personal Information, or to any other address which you have moved to, presuming you have provided an updated address to your Personal Information through a prior notice given by you pursuant to this Section. Notice given by you by means of Registered or Certified Mail shall be addressed to:
Indiana Blade Works, LLC
2735 West 127th Place
Crown Point, Indiana 46307
(b) Notice delivered by personal delivery shall be deemed sufficiently given immediately. Notice delivered by Registered or Certified Mail shall be deemed sufficiently given five (5) business days after it is sent to the proper address by the delivering party. For purposes of this Section, your “proper address” shall be the address listed in your Personal Information, and you shall be solely responsible for updating your Personal Information. Failure to update your Personal Information with your correct address shall not cause an otherwise properly delivered notice to be deemed insufficiently given. For purposes of this Section, Indiana Blade Works’ “proper address” shall be the address listed above in Subsection (a).
19. No Agency Relationship and No Third Party Beneficiaries. Nothing in this Agreement shall create an employer-employee, partnership, joint-venturer or agency relationship between Indiana Blade Works and you. Furthermore, this Agreement does not confer the right (i) to institute any cause of action arising out of this Agreement, or (ii) to seek judicial relief of any kind relating to this Agreement, upon any persons except for the parties.
20. Assignment. You may not assign, delegate, or sublicense any part of the Agreement, in whole or in part, without the prior written consent of Indiana Blade Works. Any such purported assignment, delegation, or sublicense without the proper consent of Indiana Blade Works is void. Indiana Blade Works may assign, delegate, and sublicense this Agreement at will, without providing you notice.
- Successors, Assigns, and the Like. This Agreement benefits and binds the parties and their respective permitted successors, assigns, heirs, directors, officers, interest-holders, and personal representatives.
(a) The invalidity or unenforceability of any provision of the Agreement will not affect the validity or enforceability of any other provision or of the Agreement as a whole. In the event that any provision of this Agreement is declared unenforceable because of its duration, breadth, scope, or the like, then it will automatically be modified to the duration, breadth, scope, or the like necessary to make it enforceable while preserving the original intent and meaning expressed by that provision to the fullest extent possible. In any such instance, the Agreement will be treated and interpreted as though such modification was effective upon the date that the Agreement became effective.
(b) Subject to the terms of this Agreement (including, but not limited to, the provisions of this Agreement regarding limitations of liability), if application of the severability provision in Subsection (a) above would materially and adversely affect the economic substance of the transactions contemplated by this Agreement, the party adversely impacted will be entitled to reasonable compensation for such adverse impact, provided that the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the party entitled to such compensation.
- Construction of Language; Pronouns. The language in all parts of this Agreement will in all cases be construed simply, according to its fair meaning, and not strictly for or against either of the parties. You agree that, without limitations, there will be no presumption against any party on the ground that such party or its attorney was responsible for drafting this Agreement or any part thereof. The doctrine of contra proferentem does not apply to this Agreement. All pronouns used throughout this Agreement will include the masculine, feminine, neuter, singular, and plural forms wherever the context and facts require such construction.
- Headings. The headings contained in this Agreement are for reference purposes only and will not affect the interpretation of this Agreement.
- No Waiver of Breach. Your observance of any term or performance of any obligation in this Agreement may be waived only by a writing signed by a duly authorized officer or representative of Indiana Blade Works. Any such waiver by Indiana Blade Works of any breach or default in performance will not constitute a waiver of any other or succeeding breach or default. Additionally, the failure of Indiana Blade Works to enforce any of the provisions of this Agreement will not be a waiver of the right of Indiana Blade Works to enforce such provisions or to pursue any appropriate action for breach of those provisions at a later date.
- Injunctive Relief for Indiana Blade Works. Because of the special position of Indiana Blade Works as an online retailer and the particular circumstances of the transactions contemplated by this Agreement, you acknowledge and agree that: (i) Indiana Blade Works will suffer irreparable harm if you materially breach this Agreement; (ii) monetary damages alone will be inadequate to fully compensate Indiana Blade Works for any material breach, and as such, Indiana Blade Works is entitled to injunctive relief to enforce the terms of this Agreement; (iii) injunctive relief is in addition to and is not a substitution for Indiana Blade Works’ other rights and remedies under this Agreement and at law, both statutory and common; (iv) the rights and remedies of Indiana Blade Works are cumulative; and (vii) Indiana Blade Works’ exercise of any one right or remedy is not an election, and waiver by Indiana Blade Works of any single right or remedy will not constitute a waiver of Indiana Blade Works’ right to assert all other rights and remedies available to Indiana Blade Works.
- Amendments. THIS AGREEMENT MAY BE AMENDED AT WILL BY INDIANA BLADE WORKS. SUCH AMENDMENTS WILL BECOME EFFECTIVE AND WILL BIND THE PARTIES WHEN ANY AMENDED VERSION OF THIS AGREEMENT (WHETHER OR NOT IT IS MARKED AS SUCH) IS POSTED ON THE WEBSITE. YOU MAY REQUEST RECEIPT OF NOTICE OF AMENDMENTS, WHICH WE WILL SEND BY EMAIL, IF: (i) THIS AGREEMENT IS STILL IN EFFECT BETWEEN YOU AND INDIANA BLADE WORKS AND HAS NOT BEEN TERMINATED BY EITHER PARTY; (ii) YOU REGISTER AND MAINTAIN AN ACCOUNT ON THE WEBSITE AND PROVIDE YOUR EMAIL ADDRESS, AND KEEP YOUR EMAIL ADDRESS CURRENT WITH US AT ALL TIMES; AND (iii) YOU SEND AN EMAIL TO email@example.com WITH THE PHRASE “SEND ME NOTICE OF AMENDMENTS” IN THE SUBJECT LINE. FAILURE BY YOU TO FULFILL ANY OF THESE CONDITIONS IS A KNOWING AND VOLUNTARY WAIVER OF YOUR RIGHT TO RECEIVE NOTICE OF AMENDMENTS MADE TO THIS AGREEMENT BY INDIANA BLADE WORKS; IN SUCH INSTANCE, IT IS YOUR RESPONSIBILITY TO MANUALLY CHECK FOR AMENDMENTS TO THE AGREEMENT. YOU MAY NOT AMEND THIS AGREEMENT EXCEPT WITH THE WRITTEN, SIGNED CONSENT OF A DULY AUTHORIZED INDIANA BLADE WORKS OFFICER OR REPRESENTATIVE.
- Legal Compliance.YOUR USE OF THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, USING THE WEBSITE TO PURCHASE AND ORDER THE PRODUCTS, IS AT YOUR SOLE RISK. INDIANA BLADE WORKS NEITHER OFFERS NOR PROVIDES ANY LEGAL ADVICE TO YOU WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LEGAL ADVICE REGARDING LAWS APPLICABLE TO YOUR PURCHASE, USE, AND POSSESSION OF PRODUCTS AND YOUR ACCESS AND USE OF THE WEBSITE). WE HAVE PROVIDED VERY GENERAL AND LIMITED INFORMATION THROUGHOUT THIS AGREEMENT OF LAWS THAT MAY AFFECT YOUR PURCHASE, BUT YOU PROMISE AND AGREE THAT YOU WILL NOT, UNDER ANY CIRCUMSTANCES, RELY ON SUCH INFORMATION TO FORM ANY LEGAL CONCLUSIONS OR TO MAKE ANY DECISIONS WITH RESPECT TO THE WEBSITE OR THE PRODUCTS. ADDITIONALLY, SUCH INFORMATION SHOULD NOT BE CONSIDERED COMPREHENSIVE AS IT RELATES TO APPLICABLE LAW. IT IS YOUR SOLE RESPONSIBILITY AS THE BUYER TO UNDERSTAND AND OBEY, AT ALL TIMES (AND WITH THE ASSISTANCE OF LEGAL COUNSEL FURNISHED AT YOUR OWN EXPENSE IF AND WHEN NECESSARY), ALL APPLICABLE INTERNATIONAL, FEDERAL, STATE, AND LOCAL LAWS REGARDING YOUR ORDER, PURCHASE, POSSESSION, AND USE OF PRODUCTS AND YOUR INTERACTION WITH THE WEBSITE.
- Disclaimer of Warranties.
(a) INDIANA BLADE WORKS PROVIDES ACCESS TO THE WEBSITE AND THE PRODUCTS ON AN “AS IS” BASIS, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES OR GUARANTEES;
(b) INDIANA BLADE WORKS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE WEBSITE AND THE PRODUCTS, AND SUCH DISCLAIMED WARRANTIES INCLUDE, BUT ARE NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES AGAINST INTERFERENCE, AND ALL WARRANTIES AGAINST INFRINGEMENT;
(c) INDIANA BLADE WORKS DOES NOT WARRANT, AND MAKES ABSOLUTELY NO PROMISES, THAT THE WEBSITE OR ANY OF THE PRODUCTS WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, OR THAT THE PRODUCTS WILL PROVIDE SECURITY OR PROTECTION AGAINST HARM, INJURY, OR DEATH OR WILL OTHERWISE AID IN SELF-DEFENSE OF YOU OR ANY OTHER PERSONS;
(d) INDIANA BLADE WORKS DOES NOT WARRANT, AND MAKES ABSOLUTELY NO PROMISES, THAT THE CONTENT OF THE WEBSITE OR METHOD OF DELIVERY WILL BE FREE OF ERROR (INCLUDING FACTS, STATEMENTS, SERVICE LEVELS, DOWNLOAD SPEED, WEBSITE DOWNTIME, OUTAGES, WI-FI, HOTSPOT, OR INTERNET CONNECTIVITY OR SECURITY), OR THAT DEFECTS THEREIN WILL BE CORRECTED;
(e) INDIANA BLADE WORKS DOES NOT WARRANT, AND MAKES ABSOLUTELY NO PROMISES, THAT YOUR USE OF THE WEBSITE AND THE PRODUCTS, OR YOUR ORDERING, PURCHASING, POSSESSING, OR USING OF THE PRODUCTS, IS LEGAL UNDER FEDERAL, STATE, AND LOCAL LAW; THEREFORE, YOU ARE SOLELY RESPONSIBLE FOR USING THE WEBSITE AND THE PRODUCTS IN A WAY THAT COMPLIES WITH ALL FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS, AND YOU AGREE TO INDEMNIFY, FUND THE DEFENSE OF, AND HOLD HARMLESS INDIANA BLADE WORKS FROM ANY AND LOSSES, DAMAGES OF ANY TYPE OR VARIETY, LIABILITIES, FRIVILOUS AND NON-FRIVILOUS CLAIMS, COSTS, FINES, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, COSTS, REASONABLE EXPENSES, AND REASONABLE ATTORNEY’S FEES) ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE WEBSITE, YOUR USE OF THE PRODUCTS, AND YOUR ORDERING, PURCHASING, OBTAINING, POSSESSING, AND INTERACTING WITH THE PRODUCTS;
(f) INDIANA BLADE WORKS DOES NOT, AND CANNOT, PROVIDE YOU WITH ANY LEGAL ADVICE, AND YOU AGREE TO OBTAIN THE SERVICES OF A LAWYER LICENSED TO PRACTICE IN YOUR STATE TO ASCERTAIN THE LEGALITY OF ANY ACTIONS OR TRANSACTIONS BETWEEN YOU AND INDIANA BLADE WORKS, OR ANY ACT BY YOU WHICH INVOLVES THE WEBSITE OR THE PRODUCTS; AND
(g) THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY NON-WAIVABLE PROVISIONS OF APPLICABLE LAW; TO THE EXTENT THAT APPLICABLE LAW CONTRADICTS ANY PROVISION OF THIS SECTION BUT MAY BE WAIVED OR SUPERSEDED BY CONTRACT, YOU AND INDIANA BLADE WORKS AGREE TO UNCONDITIONALLY AND IRREVOCABLY WAIVE SUCH LAW TO THE BENEFIT OF INDIANA BLADE WORKS.
- Arbitration as Exclusive Enforcement Medium; Jury Trial Waiver; Class Action Waiver
(a) For the purposes of this Section of the Agreement, all references to “Indiana Blade Works” shall be interpreted to include Indiana Blade Works LLC in addition to all of Indiana Blade Works LLC’s agents, assigns, attorneys, successors, interest-holders, officers, directors, principals, employees, and independent contractors, collectively. The aforementioned entities and persons will be treated and considered as one (1) single, inseverable entity for purposes of this Section.
(b) This Agreement will be governed by the laws of the State of Indiana, without regard to its conflict of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) apply to this Agreement. ANY AND ALL DISPUTES, CONTROVERSIES, OR CLAIMS ARISING OUT OF, IN CONNECTION WITH, OR IN RELATION TO THIS AGREEMENT OR TO YOUR USE OF THE WEBSITE AND THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, DISPUTES ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) SHALL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION AS SET FORTH THROUGHOUT THIS SECTION. Any such arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes (collectively, the “AAA Rules”). To the extent that there is any variance between the AAA Rules and this Agreement, this Agreement will supersede and control. Arbitration shall be held in Lake County, Indiana, and YOU VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY WAIVE the right to claim that arbitration in Lake County, Indiana is inconvenient or unfair, to petition for a change of venue, or to raise a cause of action against Indiana Blade Works that is not in compliance with this Section of the Agreement. Upon mutual written agreement of you and Indiana Blade Works, arbitration may be held through any arbitration system and set of rules or conditions that differs from those described in this Section; however, neither you nor Indiana Blade Works is required to make such agreement. Nonetheless, if mutual written agreement for different rules or conditions is made, all provisions of this Agreement shall still apply in full effect except for those provisions CLEARLY AND EXPLICITLY superseded by the written agreement for different rules or conditions. THE RULING IN ANY ARBITRATION PROCEEDING SHALL COMPLY WITH SECTION 31 OF THIS AGREEMENT REGARDING LIMITATIONS OF LIABILITY. IF AN AWARD OR JUDGMENT VIOLATES SECTION 31, YOU AGREE TO WAIVE THE AWARD OR JUDGMENT TO THE EXTENT NECESSARY TO BRING IT INTO COMPLIANCE WITH SECTION 31. YOU ARE NOT REQUIRED TO WAIVE ANY AWARD OR JUDGMENT IN WHOLE, IF WAIVING IT IN PART WOULD BRING IT INTO COMPLIANCE WITH SECTION 31; HOWEVER, YOU AGREE AND PROMISE TO AUTOMATICALLY MAKE SUCH WAIVER, AND TO DO ALL OTHER ACTS AND EXECUTE ALL OTHER DOCUMENTS (INCLUDING, BUT NOT LIMITED TO, EXECUTING A WRITTEN ASSIGNMENT TO INDIANA BLADE WORKS OF ANY PART OF ANY JUDGMENT WHICH EXCEEDS THE “LIABILITY CAP” AS SUCH TERM IS DEFINED IN SECTION 31) NECESSARY TO FULLY COMPLY WITH THESE PROVISIONS. YOU AGREE TO DO ALL SUCH ACTS AND EXECUTE ALL SUCH DOCUMENTS PROMPTLY AND WITHOUT DELAY.
(c) In any arbitration proceeding, the arbitrators must be members of the state bar of Indiana. If either you or Indiana Blade Works fails to submit to binding arbitration following lawful demand in accordance with the terms and conditions of this Agreement, then the party so failing is responsible for all costs and expenses incurred by the other in compelling arbitration. Neither you, the arbitrators, nor any person acting directly or indirectly on your behalf or at your behest may disclose or discuss the existence, content, or results of the arbitration (except for disclosures of information by a party required in the ordinary course of its business or by non-waivable law or regulation) until a period of two (2) years has passed following the conclusion of such arbitration proceeding. Nothing whatsoever in the preceding sentence is intended to discourage or prevent you from obtaining the counsel or employment of an attorney; you may disclose and discuss in private any details and information that you wish with your attorney, at any time. Arbitration fees, and who shall pay them, will be determined by the arbitrators. Subject to and expressly limited by the terms of this Agreement (in particular, Section 35), the prevailing party in any such arbitration action shall be entitled to collect from the non-prevailing party, in addition to any award or judgment rendered by the arbitrators, all costs, fees, and expenses incurred pursuant to the arbitration proceeding, (including, but not limited to, reasonable attorneys’ fees for both the arbitration proceeding itself and the preparation for it). Judgment on an award rendered by the arbitrators in any arbitration proceeding may be entered in any court having jurisdiction. You agree that, in this relationship, (i) the arbitrators shall decide any dispute regarding the enforceability of this Agreement or any provision of this Agreement; and (ii) this Agreement and any resulting arbitration are governed by the provisions of the Federal Arbitration Act (Title 9 of the United States Code). The arbitration provisions of this Agreement do not prohibit Indiana Blade Works from exercising any lawful rights or using other available remedies to preserve, foreclose, or obtain possession of real or personal property or to exercise self-help remedies, including setoff and repossession rights.
(d) YOU AND INDIANA BLADE WORKS HEREBY INTELLIGENTLY, KNOWINGLY, AND VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY ARBITRATION OR OTHER PROCEEDING RELATED TO OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH (i) THIS AGREEMENT; (ii) ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT; AND (iii) ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS, OR ACTIONS OF EITHER YOU OR INDIANA BLADE WORKS.
(e) YOU AND INDIANA BLADE WORKS AGREE THAT NEITHER YOU NOR INDIANA BLADE WORKS IS ENTITLED TO (i) JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS AS IT RELATES TO THIS AGREEMENT; (ii) INCLUDE IN ANY ARBITRATION OR OTHER PROCEEDING ANY DISPUTE AS A “REPRESENTATIVE” OR “MEMBER” OF A “CLASS”; OR (iii) OTHERWISE PURSUE ANY TYPE OF “CLASS ACTION” OR SIMILAR PROCEEDING AGAINST THE OTHER PARTY, WHETHER THROUGH ARBITRATION OR OTHERWISE.
(f) If you file or commence, or cause to be filed or commenced, a claim against Indiana Blade Works in violation of the terms and conditions of this Agreement generally and this Section specifically; and if you fail to withdraw such claim and cause such claim to be dismissed, promptly and without delay after being informed that the claim is in violation of the dispute resolution provisions of this Agreement; then you shall be entirely responsible for promptly reimbursing Indiana Blade Works (in addition to agents, employees, contractors, officers, interest-holders, successors, assigns, and attorneys of Indiana Blade Works as is applicable) for all costs incurred in addressing and defending against the frivolous claim, including, but not limited to, any and all travel expenses; lodging expenses; discovery expenses; lost wages with respect to any representatives, officers, agents, employees, or the like who are forced or chosen to participate; and reasonable attorney’s fees incurred (both as such fees relate to preparing to defend against the claim and as they relate to actually defending against the claim).
31. Limitations of Liability.
(a) For the purposes of this Section of the Agreement, all references to “Indiana Blade Works” shall be interpreted to include Indiana Blade Works LLC in addition to all of Indiana Blade Works LLC’s agents, assigns, attorneys, successors, interest-holders, officers, directors, principals, employees, and independent contractors, collectively. The aforementioned entities and persons will be treated and considered as one (1) single, inseverable entity for purposes of this Section.
(b) INDIANA BLADE WORKS SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PARTY FOR (i) LOST PROFITS, (ii) LOSS OF BUSINESS, OR (iii) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF, IN ANY APPLICABLE CASE, INDIANA BLADE WORKS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PRIOR KNOWLEDGE SHALL HAVE NO EFFECT ON THIS LIMITATION OF LIABILITY).
(c) THE TOTAL LIABILITY OF INDIANA BLADE WORKS IN ANY PROCEEDING ARISING FROM, IN CONNECTION WITH, OR IN RELATION TO (i) THIS AGREEMENT, (ii) YOUR USE OF THE WEBSITE, OR (iii) YOUR PURCHASE, POSSESSION, OR USE OF THE PRODUCTS (REGARDLESS OF WHETHER SUCH PROCEEDING IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE CUMULATIVE TOTAL AMOUNT OF MONEY ACTUALLY PAID BY YOU, TO INDIANA BLADE WORKS, FOR THE PURCHASE OF PRODUCTS FROM THE WEBSITE, DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THAT YOU INITIATE YOUR CLAIM (THE MAXIMUM AMOUNT OF LIABILITY THAT INDIANA BLADE WORKS CAN HAVE – HEREAFTER CALLED THE “LIABILITY CAP”). CALCULATION OF THE LIABILITY CAP WILL NOT INCLUDE SHIPPING OR TRANSPORT COSTS; TAXES; HANDLING FEES; MONEYS PAID BY YOU TO OTHER PERSONS; AND MONEYS PAID TO INDIANA BLADE WORKS NOT IN DIRECT ASSOCIATION WITH YOUR USE OF THE WEBSITE OR PRODUCTS. FURTHERMORE, THE LIABILITY CAP SHALL BE REDUCED BY THE AMOUNT OF ANY MONEY REFUNDED TO YOU BY INDIANA BLADE WORKS IN CONNECTION WITH YOUR USE OF THE WEBSITE OR PURCHASE OF PRODUCTS DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION IS UNENFORCEABLE UNDER NON-WAIVABLE PROVISIONS OF APPLICABLE LAW, YOU STILL AGREE THAT INDIANA BLADE WORKS’ AGGREGATE LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT THAT IT MAY PERMISSIBLY BE LIMITED UNDER THE LAW (EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE).
(d) YOU AGREE NOT TO: (i) SEEK RESCISSION OF THIS AGREEMENT; (ii) SEEK REFORMATION OF THIS AGREEMENT; (iii) SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF UNDER THIS AGREEMENT OR WITH RESPECT TO THE WEBSITE AND PRODUCTS; AND (iv) ENJOIN OR RESTRAIN THE OPERATION OF THE WEBSITE OR OF INDIANA BLADE WORKS’ BUSINESS OPERATIONS. YOU VOLUNTARILY, INTELLIGENTLY, AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO PERFORM THE ACTS WHICH YOU HAVE AGREED NOT TO PERFORM IN THIS SUBSECTION.
(e) INDIANA BLADE WORKS IS NOT INVOLVED IN USER-TO-USER DEALINGS, NOR DOES INDIANA BLADE WORKS CONTROL THE BEHAVIOR OF PARTICIPANTS ON THE WEBSITE. THEREFORE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS OF THE WEBSITE, YOU PROMISE THAT YOU WILL RELEASE INDIANA BLADE WORKS FROM ALL CLAIMS, DEMANDS, AND DAMAGES (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, AND PUNITIVE DAMAGES), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO ANY SUCH DISPUTES BETWEEN YOU AND ANY OTHER USER OF THE WEBSITE. IF YOU ARE A CALIFORNIA RESIDENT OR ARE EXECUTING THIS AGREEMENT IN THE STATE OF CALIFORNIA, YOU VOLUNTARILY, INTELLIGENTLY, AND IRREVOCABLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, 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.”
(f) THIS SECTION IS INTENDED TO BE INTERPRETED IN ACCORDANCE WITH, AND NOT IN CONTRADICTION TO, ALL PROVISIONS OF SECTION 30 OF THIS AGREEMENT CONCERNING ARBITRATION.
(g) THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY NON-WAIVABLE PROVISIONS OF APPLICABLE LAW. TO THE EXTENT THAT APPLICABLE LAW CONTRADICTS ANY PROVISION OF THIS SECTION BUT MAY BE WAIVED OR SUPERSEDED BY CONTRACT (REGARDLESS OF WHETHER SUCH WAIVABILITY IS STATED EXPLICITLY IN ANY STATUTE, OR IS INTERPRETED THROUGH THE HOLDING OF ANY ARBITRATIONAL OR JUDICIAL OFFICER), YOU AND INDIANA BLADE WORKS AGREE TO UNCONDITIONALLY AND IRREVOCABLY WAIVE SUCH LAW TO THE MAXIMUM BENEFIT OF INDIANA BLADE WORKS.
(h) YOU REPRESENT, WARRANT, AND AFFIRM THAT (i) YOU UNDERSTAND THE EFFECT OF ALL THE LIMITATIONS OF LIABILITY, WAIVERS, AND SIMILAR TERMS CONTAINED IN THIS AGREEMENT THAT BENEFIT INDIANA BLADE WORKS, AND (ii) ALL SUCH TERMS, WHEN CONSIDERED AS A WHOLE, ARE NOT UNJUST OR OVERLY-CUMBERSOME TO YOU PERSONALLY WHEN THEY ARE WEIGHED AGAINST THE BENEFITS YOU RECEIVE THROUGH ACCESS TO THE WEBSITE AND YOUR OTHER RIGHTS UNDER THIS AGREEMENT. IF THE PRECEDING STATEMENT IS FALSE, YOU MAY NOT EXECUTE THIS AGREEMENT OR USE THE WEBSITE OR PRODUCTS.
- Entire Agreement. THIS TERMS OF SERVICE AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, CONSTITUTES THE FINAL, EXCLUSIVE AGREEMENT BETWEEN YOU AND INDIANA BLADE WORKS ON ALL MATTERS CONCERNING THE WEBSITE AND THE PRODUCTS. ANY AND ALL EARLIER OR CONTEMPORANEOUS NEGOTIATIONS, COMMUNICATIONS, PROMISES, OR AGREEMENTS BETWEEN YOU AND INDIANA BLADE WORKS CONCERNING THE WEBSITE OR THE PRODUCTS ARE VOIDED AND SUPERSEDED BY THIS AGREEMENT.
- Your Right to Licensed Legal Counsel. YOU HAVE THE RIGHT TO SEEK THE ADVICE AND COUNSEL OF A LAWYER BEFORE ENTERING INTO THIS AGREEMENT; TO EXERCISE THIS RIGHT, YOU MUST OBTAIN SUCH LEGAL COUNSEL PRIOR TO ORDERING PRODUCTS. IF YOU CHOOSE TO USE THE WEBSITE OR ORDER PRODUCTS WITHOUT FIRST OBTAINING THE ADVICE OF A LAWYER, THEN YOU WILL BE CONSIDERED TO HAVE VOLUNTARILY AND INTELLIGENTLY WAIVED THAT RIGHT. YOU REPRESENT, WARRANT, AND AGREE THAT, AFTER CAREFULLY READING THIS ENTIRE TERMS OF SERVICE AGREEMENT, YOU ARE FULLY AWARE OF ITS CONTENTS, MEANING, AND LEGAL EFFECT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU REPRESENT, WARRANT, AND AGREE THAT ANY FAILURE OF YOURS IN EXERCISING YOUR RIGHT TO REVIEW THIS AGREEMENT AND ALL APPLICABLE INTERNATIONAL, FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS WITH A LEGAL PROFESSIONAL OF YOUR CHOOSING IS YOUR OWN VOLUNTARY AND INTELLIGENT WAIVER OF THAT RIGHT. FINALLY, YOU REPRESENT, WARRANT, AND AGREE THAT YOU ARE OF APPROPRIATE AND NECESSARY LEGAL AGE; ARE COMPETENT TO EXECUTE THIS AGREEMENT; AND ARE EXECUTING AND AGREEING TO THIS AGREEMENT INTELLIGENTLY AND VOLUNTARILY, WHILE OF SOUND MIND AND WHILE FREE FROM COERCION, DURESS, OR UNDUE INFLUENCE OF ANY KIND.
EXECUTION OF TERMS OF SERVICE AGREEMENT
SUBJECT TO THE TERMS AND CONDITIONS ABOVE, BY VISITING, ACCESSING, OR USING THE WEBSITE OR ORDERING, PURCHASING, OR USING THE PRODUCTS OFFERED ON THE WEBSITE IN ANY WAY, YOU AGREE TO ALL TERMS AND CONDITIONS OF THE ABOVE “TERMS OF SERVICE AGREEMENT” AND EXECUTE SUCH AGREEMENT AS THOUGH YOU HAD VALIDLY AFFIXED YOUR SIGNATURE TO IT.