Terms and Conditions for Hawkeye Group
Last Updated: 2/1/2024
These Terms and Conditions (“Terms”) are a contract between you and Hawkeye Group LLC (“Hawkeye” or “we” or “our”) and govern your access to and use of our website and content (the “Site”) or any products made available by Hawkeye to you for purchase (collectively, “Products”). The Site and Products may collectively be referred to as the “Services” throughout these Terms.
Please read these Terms carefully before accessing and/or using the Site and/or Products.
THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH HAWKEYE ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 11 FOR MORE INFORMATION ABOUT THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND HAWKEYE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.
- Acceptance of Terms. By accessing and/or using the Site and/or Products, or clicking any button to indicate your consent, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site or any Products.
- Amendment of Terms. Hawkeye may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site or Products after such posting constitutes your consent to be bound by the Terms, as amended. Hawkeye may also terminate the Services entirely. Hawkeye is not liable for any such modification, suspension, or termination of the Services.
- Additional Terms. In addition to these Terms, certain products or services may also be subject to additional terms, conditions, guidelines or rules which may be posted, communicated or modified by us. Your use of any such products or services is subject to those additional terms and conditions, which are hereby incorporated by reference into these Terms.
- Privacy. For information related to our privacy practices, please review our Privacy Notice.
- Eligibility. You may only use the Services and purchase Products if you are at least eighteen (18) years of age. By accessing, using and/or submitting information to or through the Services, you represent that you are not younger than age 18. If you are a parent or legal guardian and consent to your minor child’s access to and use of the Services, you agree to be bound by these Terms on behalf of yourself and your minor child.
- Use of the Services
- Our Content. The Services are owned and operated by Hawkeye and its licensors. The content, recordings, visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), or any music, images, video, text, services, and all other material or elements of or available through the Site (“Content“) are protected by the copyright, trade dress, patent, and trademark laws of the United States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for your User Content (as defined in Section 4), all Content contained on the Site is the copyrighted property of Hawkeye or its third-party licensors. All trademarks, service marks, and trade names are proprietary to Hawkeye or its third-party licensors whether registered or unregistered and may not be used in connection with any product or service or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Except as expressly authorized by Hawkeye, you agree not to sell, license, distribute, copy, modify, download, record, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Content and may only access the Content for your personal, non-commercial use. In the event that Content are downloaded to your computer or mobile phone, you do not obtain any ownership interest in such Content. All rights not expressly granted in these Terms are reserved by Hawkeye.
- Electronic Communications. You expressly consent to receipt of electronic communications from Hawkeye through posts on the Services and via the email you provided. All agreements, notices, disclosures, authorizations, verifications, confirmations, or other electronic communications Hawkeye provides according to this paragraph satisfy any legal requirement for written communication.
- Fees and Billing
- Payment Methods. All payments are processed by a third-party payment processor. As a condition to purchasing Products, you authorize such third-party payment processor to charge your payment method (i.e., credit/debit card) for the Products that you purchase, subject to such third-party payment processor’s terms and conditions. If a payment is not successfully settled due to card expiration, insufficient funds or otherwise, you nonetheless will remain responsible for any uncollected amounts. If the third-party payment processor cannot charge your account, we reserve the right, but are not obligated, to cancel your order for the applicable Product. The terms and conditions and privacy notice of our third-party payment processor will govern with regard to any financial transaction.
- Product Orders. While we will use our best efforts to fulfill all orders, Hawkeye cannot guarantee the availability of any Product displayed on this Site. Hawkeye reserves the right to discontinue the sale of any Product listed on this Site at any time without notice. We reserve the right to limit quantities to the amount reasonable for our regular customers. The prices displayed on this Site are quoted in U.S. dollars and are valid and effective only within the United States, and such prices do not include shipping and handling or sales taxes, if applicable, which will be added to your total invoice price. You are responsible for the payment of any shipping and handling charges and state and local sales or use taxes that may apply to your orders.
- Returns. For information about how we handle returns, please review our Return Policy.
- License to User Content. By posting, including on discussion boards or forums, submitting, transmitting, emailing, messaging, uploading, sharing, or otherwise making available (hereinafter “post” or “posting”) any messages, text, files, images, video, photos, sounds, or other materials on or through the Services or submitting, posting, or sharing information, including reviews, ratings, and feedback, about our Products (“User Content”), you grant Hawkeye an irrevocable, perpetual, fully paid, non-exclusive worldwide right and license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit your User Content, along with your name and likeness, (in whole or in part) and derivatives thereof in connection with the Services and Hawkeye’s (and its successors’) business, for any purpose, including, without limitation, for marketing, promoting, and redistributing part or all of the Services, in any media formats and through any media channels now known or hereafter discovered or developed. Hawkeye does not need any further approval for its uses of your User Content. Hawkeye has no obligation to use your User Content. For the avoidance of doubt, you do not own or obtain any rights in any of our Content even if you incorporate it into any User Content.
- Your Content and Submissions. Subject to the license granted in Section 4(a), you retain all rights, responsibility, and ownership of your User Content. You may only post User Content that you created or have all applicable rights and licenses to use and grant to Hawkeye the license granted in Section 4(a). We strongly recommend that you think carefully about what you upload to, share with, or make accessible to the Site. Hawkeye does not guarantee any anonymity or confidentiality with respect to any User Content. Hawkeye is not responsible for any User Content posted on the Services, nor does it control the content made available by users. Hawkeye makes no representations or warranties concerning efforts to review or monitor User Content, including the extent to which it may be considered or construed as personal, private, inappropriate, inaccurate, offensive, profane, misleading or otherwise objectionable. While Hawkeye does not pre-approve or pre-screen User Content, Hawkeye may disable, remove, or delete any User Content. Hawkeye is not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of, or reliance upon, any User Content or content or submissions from other users.
- Reviews. You understand and agree that User Content may be made public without any additional notice to or consent by you and you should assume that any person (whether or not a user of our Services) may read or have access to your User Content. Hawkeye is not responsible for the use or disclosure of any information that you disclose in connection with User Content, including any personal information. User Content are displayed for information purposes only and reflect the opinions of the person making the submission. They are not controlled by, and may not reflect the opinion of, Hawkeye. You understand that all User Content are the sole responsibility of the person from whom such User Content originated. This means that you, and not Hawkeye, are entirely responsible for all User Content that you upload, post, e-mail, transmit, or otherwise make available through the Site. You represent and warrant that your User Content are original content that you created and reflect complete, truthful, and accurate information.
- Right to Remove or Edit User Content. Hawkeye makes no representations that it will publish or make available on the Site any User Content, and reserves the right, in its sole discretion, to refuse to allow any User Content on the Site, or to edit or remove any User Content at any time with or without notice. Without limiting the generality of the preceding sentence, Hawkeye complies with the Digital Millennium Copyright Act (“DMCA”) and will remove User Content upon receipt of a compliant takedown notice (see the “Digital Millennium Copyright Act” section below). Hawkeye may, but is not obligated to, monitor and edit or remove any activity or content, in whole or in part, including but not limited to content that Hawkeye determines in its sole discretion to violate the standards of this Site. Hawkeye takes no responsibility and assumes no liability for any User Content.
- Inaccurate or Offensive Content from Other Users. You understand that when using the Site, you may be exposed to user content from a variety of sources and that Hawkeye does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such user content. You further understand and acknowledge that you may be exposed to user content that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST HAWKEYE WITH RESPECT THERETO.
- Feedback. If you provide Hawkeye with any comments, bug reports, feedback, improvements, or modifications proposed or suggested by you with respect to the Site, Services, or any Products (“Feedback“), you hereby grant Hawkeye a perpetual, irrevocable, worldwide, transferable, sublicensable, fully paid, nonexclusive license under all rights necessary, without notice to, consent by, or compensation to you or any third party and without attribution, to (i) use, copy, reproduce, distribute, sell, license, lease, create derivative works of, adapt, publicly display, and perform such Feedback in any and all media now known or hereafter created, (ii) incorporate all or any of the Feedback or results of clause (i) into the Services and to make the Services available to third parties, and (iii) make, have made, develop, sell, offer to sale, import, or lease any Services.
- Infringing or Illegal Activity. In the event of infringing or other illegal activities by you or any other user, we have no obligation to, but reserve the right to terminate access to the Site and remove all content submitted by any persons who are found to be infringers. Any suspected illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Hawkeye may have at law or in equity.
Digital Millennium Copyright Act. Pursuant to the DMCA, if you, or an agent authorized to act on your behalf, believe in good faith that your work is on the Services in a way that constitutes copyright infringement, please provide written notice to Hawkeye Group LLC at 3522 Commerce Dr, Warsaw IN, 46580 with the following information:
In accordance with the DMCA, Hawkeye may delete, remove, or disable any infringing work, and may forward to the alleged infringer your written notice and a notice that the work has been deleted, removed, or disabled. Hawkeye reserves the right to terminate users’ access to the Services who post infringing work.
- A physical or electronic signature of a person authorized to act on the copyright owner’s behalf;
- A description of the copyrighted work claimed to have been infringed;
- A description of where the copyrighted work is located on the Services, including if possible a URL;
- Your address, telephone number, and email address;
- A statement that you believe in good faith that use of the work is not authorized by the copyright owner, its agent, or the law; and
- A statement, under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Accuracy and Security Obligations
- Security. You are responsible for your access to and use of the Services, including all financial transactions. You agree to immediately notify Hawkeye of any breach of security that may occur through your access or use of the Services and to prevent its further occurrence. If you become aware that someone may be impersonating or attempting to impersonate you in using the Services or processing any financial transactions through the Services, you should contact us immediately.
- Accuracy of Personal Information. You represent and warrant that all information provided to Hawkeye through the Site is current, accurate, complete and truthful, including all initial or updated registration information, such as the legal name, street address, email address, telephone number, and financial transaction account information. You further represent and warrant that you are an authorized account holder of any financial transaction account which you provide to Hawkeye through the Site.
Without limiting the prohibitions and restrictions found elsewhere throughout the Terms, you agree not to:
- Harass, threaten, stalk, disrupt or defraud users, members or staff of Hawkeye or any other person, or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;
- Act in a deceptive or fraudulent manner by, among other things, impersonating another person;
- Reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast, use for commercial purposes or otherwise exploit any portion of the Services;
- Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights or notices from any portion of the Site;
- Upload material (i.e., virus) that is damaging to computer systems or data of Hawkeye or users of the Site or otherwise use the Site in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Site;
- Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others;
- Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
- Decompile, reverse engineer or disassemble the Site, in whole or in part, except as may be permitted by applicable law;
- Link to, mirror or frame any portion of the Site;
- Cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site;
- Attempt to gain unauthorized access to or impair any aspect of the Site or its related systems or networks or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
- Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;
- Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein;
- Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site;
- Modify the Site in any manner or form, or use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site;
- Use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site; or
- Use the Site for or in connection with any purpose that is unlawful or prohibited by these Terms.
Third Party Sites
- YOU AGREE TO INDEMNIFY AND HOLD HARMLESS HAWKEYE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, FROM AND AGAINST ANY AND ALL LOSS, EXPENSES, DAMAGES, AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, RESULTING, WHETHER DIRECTLY OR INDIRECTLY, FROM YOUR VIOLATION OF THESE TERMS. YOU ALSO AGREE TO INDEMNIFY AND HOLD HARMLESS HAWKEYE AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, FROM AND AGAINST ANY AND ALL CLAIMS BROUGHT BY THIRD PARTIES ARISING OUT OF YOUR USE OF THE SERVICES IN BREACH OF THESE TERMS OR THE USER CONTENT YOU MAKE AVAILABLE VIA THE SERVICES BY ANY MEANS, INCLUDING WITHOUT LIMITATION THROUGH A POSTING, A LINK, REFERENCE TO USER CONTENT, OR OTHERWISE, UNLESS PROHIBITED BY APPLICABLE LAW.
DISCLAIMER OF WARRANTIES
- HAWKEYE IS NOT A PROVIDER OF MEDICAL TREATMENT, AND THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR NURSING ADVICE, DIAGNOSIS, OR TREATMENT. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT: (A) THE SERVICES DO NOT CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE, DIAGNOSES, OR OPINIONS; AND (B) THE SERVICES ARE NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR NURSING ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL OR OTHER HEALTH CONDITION.
- YOU ARE ACCESSING THE SERVICES ON AN “AS IS, WHERE IS, AND AS AVAILABLE” BASIS. HAWKEYE IS NOT RESPONSIBLE FOR PROBLEMS ARISING FROM, OR INADEQUACIES IN THE CONTENT OF THE SERVICES OR ANY PARTICULAR FEATURES OR SERVICES OFFERED. HAWKEYE DOES NOT REPRESENT OR WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE INFORMATION, MATERIALS, AND SERVICES ON THE SERVICES OR THE ERROR-FREE USE OF THE SERVICES. HAWKEYE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM ACCESS TO OR USE OF THE SERVICES. HAWKEYE IS PROVIDING THE SERVICES WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM A COMPUTER VIRUS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- FOR CALIFORNIA RESIDENTS. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE 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.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST RELEASED PARTIES.
LIMITATION OF LIABILITY
- UNDER NO CIRCUMSTANCES WILL HAWKEYE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF HAWKEYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, HAWKEYE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- HAWKEYE’S LIABILITY TO YOU IS LIMITED TO $50 OR THE AMOUNTS, IF ANY, PAID BY YOU TO HAWKEYE UNDER THESE TERMS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER HAWKEYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ARBITRATION AGREEMENT WITH CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING CAREFULLY:
If you have a legal dispute with Hawkeye, except where prohibited by applicable law, you and we hereby agree to proceed as follows:
- Any dispute, claim or controversy between you and Hawkeye that arises from or relates in any way to these Terms (including any alleged breach thereof), the Services, or Hawkeye’s relationship with you (collectively, “Dispute”) shall be exclusively resolved through binding individual arbitration except as specifically provided otherwise herein. “Dispute” as used in this section shall have the broadest possible meaning and include claims that arose before the existence of these Terms (or any prior agreement or terms). YOU AND HAWKEYE EACH WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO LITIGATE DISPUTES IN COURT IN FAVOR OF INDIVIDUAL ARBITRATION (EXCEPT AS SET FORTH BELOW). YOU AND HAWKEYE EACH WAIVE THE RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER OR OTHERWISE TO SEEK RELIEF ON A CLASS BASIS. If there is a judicial determination that any particular claim cannot be arbitrated in accordance with this provision’s limitations, then only that claim may be brought in court. All other claims remain subject to this provision.
- Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username, email address or phone number you use with Hawkeye, a detailed description of the dispute and the relief that you seek. Any Notice of Dispute that you send to us should be emailed to us at Marketing@hawkeyegroup.onmicrosoft.com with a copy mailed to Hawkeye Group 3522 Commerce Dr, Warsaw IN, 46580 . Before we commence arbitration, we will send you a Notice of Dispute to the email address that you use with Hawkeye (or by other appropriate means). If we are unable to resolve a Dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.
- The U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Hawkeye Group 3522 Commerce Dr, Warsaw IN, 46580. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, in Indiana. Disputes involving claims and counterclaims 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 https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
- You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the state where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Notwithstanding the foregoing, either you or Hawkeye may elect to have an individual claim heard in a small claims court having jurisdiction over the claim. If the request to proceed in small claims court is made after an arbitration has been initiated but before an arbitrator has been appointed, such arbitration shall be administratively closed. Any controversy over the small claims court’s jurisdiction shall be determined by the small claims court. All other issues (except as otherwise provided herein) are exclusively for the arbitrator to decide, including but not limited to scope and enforceability of these Terms, as well as any request to proceed in small claims court that is made after an arbitrator has been appointed.
- You may opt out of this arbitration provision within 30 days of the date that you agreed to these Terms (which will be deemed to have occurred on your first visit to the Site or the making of an order with Hawkeye, whichever is first). To opt out, you must send your name, residence address, username, email address or phone number you use with Hawkeye (and a clear statement that you want to opt out of this arbitration agreement) to: Marketing@hawkeyegroup.onmicrosoft.com .
- ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE; AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the state or federal courts located in the State of Indiana. All other claims shall be arbitrated.
- YOU AND HAWKEYE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Hawkeye are instead electing that all claims and disputes shall be resolved by arbitration under these Terms, except as specified in subsection (e), (f), and (g) 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.
- The foregoing shall not preclude Hawkeye from seeking injunctive relief in any court of competent jurisdiction located in other countries and jurisdictions for protection of Hawkeye’s intellectual property.
- Waiver and Severability. To the extent that a court of competent jurisdiction determines any part of the terms and conditions in these Terms to be invalid or unenforceable, that part will be modified by the court solely to the extent necessary to cause that part to be enforceable, and the remainder of these Terms will remain in full force and effect. Hawkeye’s failure to exercise or enforce a legal right, remedy or benefit which is contained in these Terms or any applicable law does not constitute waiver of its right to do so later.
- Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Indiana, without regard to conflict of law provisions, consistent with the Federal Arbitration Act (to the extent permitted by applicable law). If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States), the dispute shall be exclusively brought in state or federal court located in Fort Wayne, IN.
- Assignment. We may assign our rights and obligations under these Terms. These Terms will inure to the benefit of our successors, assigns, and licensees. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under these Terms, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of these Terms.